Bangalore District Court
Smt.B.U.Indira vs The Managing Director on 28 August, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 28TH DAY OF AUGUST, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.4504/2013
Petitioner/s 1.Smt.B.U.Indira,
W/o Late A.K.Aiyanna,
Aged about 48 years.
2.A.A.Kaveri,
D/o Late A.K.Aiyanna,
Aged about 23 years.
3.A.A.Kashmira,
D/o Late A.K.Aiyanna,
Aged about 21 years.
All are r/at No.479,
1st main road, 17th cross,
2nd block, Vishwapriyanagar,
Bengaluru - 560 068.
(By Pleader - Sri.G.N.Subramani.)
V/s
Respondent/s 1.The Managing Director,
KSRTC Depot,
Bengaluru Central Offices,
K.H.Road,
Shanthinagar,
Bengaluru - 560 027.
(SCCH-15) 2 MVC.4504/2013
(R.C. owner of KSRTC bus
bearing No.KA-40-F-833)
(By Pleader - Sri.Afzal Ahmed.)
2.New India Assurance Co.Ltd.,
By its Manager, No.9/2,
Mahalakshmi Chambers,
Regional Office, M.G.Road,
Bengaluru - 1.
Policy No.67210031120100003550
period of cover from 30.03.2013 to
29.03.2014. Volvo bus bearing
Reg.No.KA-40 F-833)
(By Pleader - Sri.B.Anjaneyalu.)
3.Sundaran.K.T.
S/o Thimmarayan,
No.21, 2nd Main Road,
K.P.N. Extension,
Bengaluru - 2.
(Owner of the lorry bearing
No.KA-01-AG-5199)
(By Pleader - Sri.K.Nagaraja.)
4.Cholamandalam M.S.General
Insurance Co.Ltd.,
Dharmapuri Town & District,
Tamilnadu State.
Policy No.3379/00806306/000/00
valid from 19.12.2012 to 18.12.2013.
(By Pleader - Sri.K.Suresh.)
JUDGMENT
Petitioners have filed the present petition under Section 166 of MV Act seeking compensation on account (SCCH-15) 3 MVC.4504/2013 of death of A.K.Aiyanna, the husband of 1st petitioner and father of rest of the petitioners in road traffic accident.
2. Initially, this petition was assigned to the Hon'ble SCCH-10 and subsequently, as per the Notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioners is that on 28/29.06.2013 in the mid night, the deceased being conductor and on duty in KSRTC Volvo bus bearing registration No.KA-40 F-833 being seated on the left front seat i.e. in conductor seat was proceeding on Bengaluru - Hosur (NH-7 road). When they reached Neraloor gate, Attibele Hobli, Anekal Taluk, the bus driver proceeded with high speed in rash and negligent manner and dashed against the lorry bearing registration No.KA-01 G-5199.
b) Because of which, he suffered injuries all over the body. Immediately, he was shifted to S.M.S. hospital, Bengaluru. Despite of better and expert treatment, he succumbed to the injuries on the same day at 6:00 a.m. (SCCH-15) 4 MVC.4504/2013 Accident took place solely due to rash and negligent driving of KSRTC bus. Therefore, respondent being the RC owner and internal insurer of KSRTC bus is liable to pay the compensation. Accordingly, prayed to allow the petition as sought for.
4. In response to due service of notice, respondent put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments. However, it has contended that accident if any is because of the negligent driving of front going lorry, which all of a sudden stopped without giving proper indication. Because of which, bus driver who was driving the bus in cautious manner, could not control the bus and it touched the hind portion of the lorry.
b) It has also contended that it has already deposited Rs.5,42,240/- before Labour Commissioner, under Workmen's Compensation Act vide cheque No.990979 dated 07.11.2013. Moreover, the bus was duly insured with the New India Assurance Company Ltd., vide policy bearing No.6721003112010003550. (SCCH-15) 5 MVC.4504/2013 Therefore, liability if any should be saddled on the insurance company since driver had valid and effective driving licence and bus was having valid permit and fitness certificate. Therefore, prayed to dismiss the petition against it with costs.
5. On going through the statement of objections of respondent, petitioner got impleaded the insurance company of KSRTC bus i.e., New India Assurance company as 2nd respondent and got amended its pleading in that regard.
b) In response to due service of notice, 2nd respondent appeared through its counsel and filed its statement of objections to the main petition wherein it has admitted the policy and its force but has contended that its liability is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
c) It has also contended that KSRTC bus has falsely implicated in the present accident. Accident is because of negligent driving of lorry driver who all of a sudden (SCCH-15) 6 MVC.4504/2013 applied the brake. Therefore, the present petition is bad for non-joinder of necessary parties since owner and insurer of lorry are not made as parties to the proceedings. Hence, prayed to dismiss the petition against it with costs.
6. Subsequently, 2nd respondent has filed impleading application seeking implement of owner of the lorry as 3rd respondent and in response to the due service of notice, 3rd respondent put its appearance through his counsel and filed his statement of objections to the main petition wherein it has specifically contended that the accident is solely on the negligence of KSRTC bus driver and there is no negligence on the part of lorry.
b) He has also contended that he was proceeding with due care and caution on the extreme left side of the road. The jurisdictional police have charge sheeted the KSRTC bus driver. Therefore, there is no negligence on his part in occurrence of the accident.
c) It is also his case that lorry was duly insured with New India Assurance Co. Ltd vide policy baring (SCCH-15) 7 MVC.4504/2013 No.3379/00806306/000/00 valid from 19.12.2012 to 18.12.2013 and the policy was valid an in force on the date of accident. The driver was having valid and effective driving licence. Therefore, prayed to dismiss the petition against him with costs.
7. Subsequently, on going through the statement of objections of 3rd respondent, 2nd respondent has also got impleaded the insurer of lorry as 4th respondent which in response to due service of notice put its appearance and got filed its statement of objections to the main petition wherein it has also contended that accident if any is solely due to rash and negligent driving on the part of bus driver and there is no negligence on the part of lorry driver. Accordingly, 3rd and 4th respondents are not necessary parties to the proceedings. Hence, prayed to dismiss the petition on this ground alone.
b) However, it has admitted the police and its force with regard to the lorry and contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents of the (SCCH-15) 8 MVC.4504/2013 lorry. Accordingly, prayed to dismiss the petition against it with costs.
8. On the above said pleadings of the parties, my learned predecessor in office i.e. the then Presiding Officer of SCCH-10 was pleased to frame the following issues.
1. Whether petitioners prove that the deceased Sri. Aiyanna has died in the motor vehicle accident that occurred on 29.06.2013 at about 12:00 hours, Bengaluru Hosur road, (NH-7), Neraloor gate, Attibele Hobli, Anekal Taluk, Bengaluru District, within the jurisdiction of Attibele police station on account of rash and negligent driving of KSRTC bus bearing registration No.KA-40 F-833 by its driver as alleged?
2. Whether petitioners are entitled for compensation? If so, what amount and from whom?
3. What order or award?
9. To prove the above said issues and to substantiate their respective contentions, 1st petitioner herself has entered into witness box as PW-1. They got examined the alleged employee of the deceased as PW-2. Totally got exhibited 19 documents and closed their side. (SCCH-15) 9 MVC.4504/2013
b) Per contra, its driver himself entered into witness box as RW-1 on behalf of 1st respondent. No document is got exhibited. Assistant Manager of 2nd respondent insurance company is examined as RW-2 on behalf of 2nd respondent. Got exhibited 6 documents.
c) On the other hand, 4th respondent got examined its Assistant Manager as RW-3. Got exhibited 2 documents as Ex.R-7 and 8 and closed his side. Despite of sufficient opportunities, 3rd respondent did not let in any defence evidence. Accordingly, defence evidence on behalf of 3rd respondent is taken as nil.
d) Hence heard both the sides on merits of the case. In support of his arguments, counsel for petitioner has filed xerox copies of the decisions reported in 2013 ACJ 1403 and 2013 AIR SCW 3258;
counsel for 1st respondent has filed memo along with xerox copies of decision reported in ILR 2008 KAR 4832;
(SCCH-15) 10 MVC.4504/2013
per contra, counsel for 2nd respondent has filed memo along with xerox copy of the decision reported in ILR 2000 KAR 3809.
This Tribunal has carefully gone through the reported decisions and perused the record.
10. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1 : Affirmative.
2. Issue No.2 : Petitioners are entitled for Compensation amount of Rs.24,62,800/-
at the rate of 35:20:45
together with interest at
8% p.a. from the date of
petition till the
realization in its entirety
from 2nd respondent.
3. Issue No.3 : As per final order for the following reasons.
REASONS
11. ISSUE No.1:- If the above observed pleadings of the parties are taken note off, absolutely there is no dispute between the parties with regard to the alleged accident; the date, time and place of the accident; the (SCCH-15) 11 MVC.4504/2013 vehicles involved in the accident as well as respective drivers of the vehicles at the time of accident. So, the only point now that remained for the consideration of this Tribunal for the proper adjudication of this issue is the rash and negligent act of whom which resulted in the present accident.
12. It is the case of petitioners and 3rd & 4th respondents that accident took place because of negligent driving of KSRTC bus driver i.e. RW-1. Per contra, both 1st and 2nd respondents have contended that accident took place because of negligent driving of lorry driver, who all of a sudden applied brake and stationed the lorry.
13. The fact that the KSRTC bus driver i.e. RW-1 is charge sheeted with regard to the present accident is not in dispute. It is in the cross-examination of RW-1 that he has not challenged the charge sheet and he has not made any counter complaint but he has deposed that he is facing the trial in the criminal court. (SCCH-15) 12 MVC.4504/2013
14. There is also no dispute between the parties with regard to the fact that at the time of accident deceased being conductor of the bus was proceeding in KSRTC bus. In addition, it is also the contention of the 1st respondent and during course of evidence 2nd respondent has also admitted that 1st respondent KSRTC has already deposited some amount before Labour Commissioner under Workmen's Compensation Act.
15. It is the contention of petitioners that they have not withdrawn the said alleged deposited amount under the Workmen's Compensation Act. It is in the cross- examination of RW-2 that he is unaware of the fact whether petitioners have withdrawn the said deposited amount or not. It is the case of petitioners that they have not withdrawn any such amount.
16. However, since the present case is of RTA while on duty, petitioners being the legal heirs of the deceased are of course entitled to apt one of the mode for compensation i.e. either MV Act or Workmen's Compensation Act.
(SCCH-15) 13 MVC.4504/2013
17. To establish the rash and negligent driving on the part of KSRTC bus driver, 1st petitioner herself has appeared in the witness box as PW-1. She has filed her affidavit evidence wherein she has reiterated the petition averments. She has specifically deposed that the accident took place because of negligent driving of KSRTC bus.
18. But it is in her cross-examination that she did not see the accident personally. So, she is not an eye- witness to the accident. Hence. whatever she has deposed with regard to the rash and negligent aspect as well as manner of the accident are nothing but hearsay evidence.
19. However, to establish their defence, KSRTC bus driver himself has entered into witness box as RW-1 on behalf of 1st respondent and has filed his affidavit evidence wherein he has reiterated the statement of objection averments of the 1st respondent to the main petition and specifically deposed that accident took place since lorry driver all of a sudden applied brake and stationed bus.
(SCCH-15) 14 MVC.4504/2013
20. In his cross-examination he has denied the suggestion that accident took place because of his sole negligence. However, he has admitted the suggestion that there was a cross road a little bit ahead from the accident spot towards right side. Generally all the buses proceed towards Hosur move with moderate speed till the said cross and the lorry was moving in medium speed. At this stage, he voluntarily deposed that he was moving in a zig zag manner.
21. He has denied the suggestion that since there was cross road, the lorry was moving slowly. At this stage, he again voluntarily deposed that the lorry which was moving on the left side, all of a sudden came towards right side and there was no indicator and he applied sudden brake.
22. He has denied the suggestion that he himself proceeded with high speed and dashed against the lorry. However, he has admitted that he is charge sheeted for the present accident and he has not filed any complaint before the higher authority alleging that there is no fault (SCCH-15) 15 MVC.4504/2013 on his part in occurrence of accident. He has denied the suggestion since the accident took place because of his negligence, he has not challenged the charge sheet.
23. It is also in his cross-examination for 3rd respondent that after examination by the technical supervisor, the vehicle/bus would be released from the depot; they left Shanthinagar KSRTC bus stand at 9:55 p.m.; accident took place around 11:30 p.m. in the mid night. He has admitted the suggestion that road at accident spot from Bengaluru till Hosur border, there are street lights.
24. He has denied the suggestion that in the road at accident spot, three buses can move at a time. At this stage, he voluntarily deposed that now three buses can move but at the time of accident, only 2 buses can move at a time. He has denied the suggestion that the road at accident spot is light up gradient road. He has voluntarily deposed that there is little curve ahead but road is level road.
(SCCH-15) 16 MVC.4504/2013
25. He has deposed that it may be correct that the speed limit at accident is 80 kmph. At this stage, he voluntarily deposed that he did not see. He deposed that the lorry in question is the only vehicle ahead to his bus. He didn't see the other vehicles if any in front of the lorry in question. He voluntarily deposed that the lorry already over took him twice prior to the accident.
26. He has also deposed that he could see the front view clearly and he saw the vehicle ahead to him. He has denied the suggestion that since he was proceeding with high speed, he could not avoid and dashed against the entire back portion of the lorry. At this stage, he voluntarily deposed that the lorry driver without any indication, all of a sudden applied the brake.
27. He has denied the suggestion that if he was proceeding slowly, there was every possibility of avoiding the bus even the lorry driver applied the break all of a sudden. At this stage, he voluntarily deposed that the lorry was very nearer to the bus, despite of his applying break, bus dashed against the lorry.
(SCCH-15) 17 MVC.4504/2013
28. He has denied the suggestion that he was driving the Volvo bus. At this stage, he voluntarily deposed that it is Tata Ambari. However, in the through MV examination report it is specifically stated that KSRTC bus is Tata Ambari. So, it is not Volvo bus. Therefore, whatever the cross-examination done for 4th respondent at length including special training to drive the Volvo vehicle is not necessary for consideration.
29. It is in the cross-examination of RW-1 for 4th respondent that road at accident spot is highway; two wheelers shall move on the left side; in the center the heavy vehicles should move and MLV vehicles should move on the right side. He has denied the suggestion that lorry was moving on the centre of the road.
30. At this stage, he voluntarily deposed that he/the lorry driver overtook his bus and came to the extreme right side of the road. The said lorry was of 10 wheeler. He has admitted the suggestion that loaded 10 wheeler lorries cannot move beyond 40 to 45 kmph and he has deposed that generally Tata Corona A/C sleeper coach (SCCH-15) 18 MVC.4504/2013 would move around 70 to 75 kmph on high way. At this stage, he voluntarily deposed that speed governor was installed to their bus.
31. RW-2, the Assistant Manager of 2nd respondent who has stepped into witness box has filed his affidavit evidence wherein he has reiterated their statement of objections to the main petition and specifically deposed that accident is because of negligent driving of the lorry. There is no fault on the part of bus driver. He has produced letter written by Divisional Controller to Assistant Manager; the true copy of cheque and the letter written by Divisional Controller to the Labour Commissioner i.e. with regard to the deposit of amount in Workmen's Compensation Act Labour Commissioner. As observed above there is no dispute in that regard.
32. It is in his cross-examination that he did not see the accident personally and whatever he has deposed is basing on the record. He has admitted the suggestion that KSRTC bus driver is charge sheeted. At this stage, he voluntarily deposed that it is wrong charge sheet. He (SCCH-15) 19 MVC.4504/2013 has deposed that he has not made any representation before the police higher authority seeking reinvestigation.
33. In his cross-examination for 4th respondent he has denied the suggestion that whatever he has stated in para No.4 of his affidavit evidence to the effect that lorry all of a sudden applied the brake is not stated anywhere in their statement of objections and no where in the police papers.
34. RW-3, the Assistant Manager of 4th respondent has filed his affidavit evidence wherein he has reiterated the statement of objections averments of 4th respondent and specifically deposed that accident took place because of negligent driving of the bus driver. But it is an admitted fact that he is also not an eyewitness to the accident.
35. Therefore, whatever the evidence given by 1st petitioner, RWs-2 and 3 is nothing but hear say evidence. So, oral evidence let in by 1st respondent is the only direct evidence i.e. evidence of RW-1/bus driver. But in support of his/RW-1's oral evidence, 1st respondent has (SCCH-15) 20 MVC.4504/2013 not produced any supportive document and admittedly police papers are against him/RW-1/the bus driver.
36. If the police papers are taken into consideration, admittedly accident took place in the middle of the road leads from Bengaluru to Hosur and it takes curve a little bit ahead from the accident spot towards right side. At this stage, it is also important to note that it is in cross- examination of RW-1 that even he applied brake and tried to stop the bus, it dashed against the hind portion of the lorry. Therefore, it appears that bus driver has not maintained safety distance between the lorry and the bus.
37. Of course, RW-1 has deposed that lorry driver twice over took him and came in front of him. But there is no such evidence forthcoming in any of the document on record. Therefore, the said explanation in the circumstances of the case and the evidence on record cannot be relied on.
38. Moreover, there is presumption with regard to the police papers that they are prepared by the investing (SCCH-15) 21 MVC.4504/2013 officers during the discharge of their official duty while investigation of a crime. Of course the said presumption is rebuttal one. But, no such rebuttal evidence is let in by the respondents particularly 1st and 2nd respondents.
39. Therefore, petitioners with the oral evidence of 1st petitioner, the supportive evidence of RWs-2 and 3 and the corroborative police papers at Ex.P-1 to 7 i.e. true copies of FIR with complaint, spot mahazar, spot sketch, MV report, inquest report and PM report, reply notice and charge sheet at Ex.P-12, have successfully proved that accident took place because of the rash and negligent driving of KSRTC bus driver/RW-1.
40. So far the death of the deceased because of accidental injuries, absolutely there is no dispute between the parties. Moreover, to establish that petitioners with the oral evidence of 1st petitioner have relied on the police papers observed above which are in support of the case of petitioners with regard to the death of the deceased because of accidental injuries. Hence, issue No.1 is answered in affirmative. (SCCH-15) 22 MVC.4504/2013
41. ISSUE No.2:- It is the case of petitioners that they are respectively wife and children of the deceased. Respondents have not at all disputed the relationship of the petitioners with the deceased. Moreover, it is elicited in the cross-examination of 1st petitioner and also it is in the evidence of RWs-1 and 2 that 2nd petitioner, the daughter of deceased is given job on compensatory grounds.
42. In addition, petitioners to establish their relationship with the deceased have also produced notarized copy of the ration card at Ex.P-13 wherein petitioners are respectively wife and children of the deceased. Ex.P-14 is the notarized copy of voters ID of the petitioners are also in support of the case of petitioners with regard to their relationship of the deceased wherein name of husband of 1st petitioner and father's name of rest of the petitioners is shown as A.K.Aiyanna and the address of the deceased and the petitioners in the voters ID is taken note off, it is one and the same.
(SCCH-15) 23 MVC.4504/2013
43. Moreover, during evidence of employer of the deceased i.e. PW-2, he has produced true copy of the service book of the deceased which also support the petitioner to prove the relationship. Moreover, in the inquest mahazar at Ex.P-5, there is statement of 1st petitioner wherein she has stated the deceased is her husband and they have two daughters by name Kaveri and Kashmira i.e. 2nd and 3rd petitioners herein. There is no cross-examination by other side with regard to the above observed documents.
44. Accordingly, petitioners being legal heirs of the deceased are of course entitled to file present claim petition seeking compensation on account of death of the deceased in road traffic accident and in view of answering issue No.1 in the affirmative, petitioners are entitled for compensation. Now in respect of quantum.
45. It is the case of the petitioners that deceased was aged 54 years; was conductor in KSRTC and had income of Rs.33,000/- p.m. There is no dispute between the parties with regard to the fact that deceased was (SCCH-15) 24 MVC.4504/2013 conductor in KSRTC and he was exposed to the accident in the course of employment and succumbed to the injuries.
46. To prove his age, petitioners have produced service register at Ex.P-17, wherein his date of birth is shown as 20.07.1957. The date of accident is 28.06.2013. It is in the police papers particularly the inquest mahazr and PM report wherein his age is shown as 55 and 58 years respectively. However, since the service register demonstrates the exact date of birth, the age of the deceased is taken as shown there i.e. 54 years, for which the proper multiplier applicable is 11.
47. So far as income of the deceased as on the date of accident, petitioners have got produced pay slips 2 in numbers for the months of May and June 2013 at Ex.P- 19 which reflect the gross salary as Rs.32,518/- and the net salary as Rs.20,803/-.
In the decision reported in ILR 2000 Karnataka page 3809 (Union of India and others VS K.S.Lakshmi Kumar and others) it is held that;
(SCCH-15) 25 MVC.4504/2013
MOTOR VEHICLES ACT, 1988 (CENTRAL ACT No.59 OF 1988) - Section 168 and 171 for the death of a lady officer, aged 53 years working in Andhra Bank drawing a salary of Rs.16,852/- - her husband aged 64 years and a student son aged 21 years claimed compensation of Rs.29 lakhs. The Tribunal after deducting one third from the gross salary and adopting a multiplier of 11 awarded compensation of Rs.1,06,000/-. Aggrieved by this Union of India filed appeal - HELD - When husband and upcoming son claim compensation it is the age of the husband that has to be adopted for computing compensation.
-- Income tax and Profession Tax have to be deducted from the gross salary while computing the loss of dependency.
-- In case, the date of superannuation falls within period of multiplier, then the salary received during service and the pension received for the balance of the period shall have to be the basis for computing loss of dependency.
-- Awarding the compensation for the shock and agony suffered by the claimants not permissible.
-- Interest in fatal accident cases can be awarded at the rate of 6 per cent per annum.
-- Interest should be awarded from the date of the claim petition and not from the date of the accident.
48. Since the date of accident is 29.06.2013, the salary slip at Sl.No.1 at Ex.P-19 is taken into consideration for assessment of net salary wherein only (SCCH-15) 26 MVC.4504/2013 Rs.200/- is deducted towards professional tax. No amount is deducted towards income tax. Hence, it is thought just and proper to deduct 10% of the salary towards income tax.
49. Thus after deducting 10% of gross salary of Rs.32,518.60 which comes to Rs.3,251.86 plus Rs.200/-, the amount deducted towards professional tax totally Rs.3,451.86/-, the salary/income comes to Rs.29,066.74 rounded off to Rs.29,000/-. Accordingly, the income of the deceased is taken as Rs.29,000/- p.m.
50. Since, deceased is Government employee and he was aged about 54 years and his super annuation falls on 60 years and thereby he had service of 6 years. So, the superannuation falls within the period of multiplier. The income of the deceased at Rs.29,000/- should be taken into consideration for 6 years and thereafter for the remaining years i.e. for 5 years, pension i.e. average 50% of the salary be taken into consideration. Accordingly, petitioners are entitled for the full salary for 6 years and 50% salary for remaining 5 years as loss of dependency. (SCCH-15) 27 MVC.4504/2013
51. Since deceased died at the age of 54 years, petitioners are entitled for future prospectus at 15%. Since deceased died leaving behind his wife and two daughters, 1/3rd of income should be deducted towards his personal expenditure. Accordingly, petitioners are entitled for 2/3rd of the income of the deceased as loss of dependency.
52. Considering the fact that 1st petitioner is wife has lost her husband at her middle age and 2nd and 3rd petitioners are unmarried daughters lost their father, it is thought just and proper to award some reasonable compensation for loss of consortium, loss of love and affection as well as loss of estate.
53. In the result, petitioners are entitled for the compensation under the heads mentioned below and the amount against them.
1. Loss of dependency Rs.19,72,000/-
(Rs.29,000 x 12 x 2/3 x 6 = 13,92,000) (Rs.14,500 x 12 x 2/3 x 5 = 5,80,000)
2. Add 15% of future prospectus Rs. 2,95,800/-
3. Loss of consortium Rs. 50,000/-
3. Loss of Love and Affection Rs. 50,000/- (P-2 & P-3, Rs.25,000/- each)
4. Loss of Estate Rs. 75,000/-
(SCCH-15) 28 MVC.4504/2013(P-1 to P-3, Rs.25,000/- each)
6. Transportation of dead body and Funeral Expenses Rs. 20,000/-
Total: Rs.24,62,800/-
54. Considering the cost of living as on the date of the accident, it is thought fit to award interest @ 8% p.a. from the date of petition till the realization of the compensation amount in its entirety.
55. Now in respect of liability. In view of holding that accident took place because of negligent driving of KSRTC bus driver, there is no question of payment of compensation by 3rd and 4th respondents. It is an admitted fact that bus was duly insured with 2nd respondent. Even 2nd respondent contended that liability is subject to the terms and conditions of the policy such as driving licence and vehicular documents. As observed above, it has not let in any defence evidence with regard to breach of policy conditions if any.
56. On the other hand, if the evidence on record is taken into consideration, as per charge sheet at Ex.P-12, the jurisdictional police have charge sheeted the KSRTC (SCCH-15) 29 MVC.4504/2013 bus driver for the offences punishable under Sections 279, 337 and 304(A) of IPC. There is no allegation against the KSRTC bus driver for any of the offences punishable under any of the provisions of MV Act.
57. Therefore, it appears that on the date of accident, the KSRTC bus driver did possess valid and effective driving licence to drive the class of bus involved in the accident and the bus was also having valid and effective documents which were in force and in order as on the date of accident. Hence, 1st respondent being the RC owner is liable to pay the compensation and 2nd respondent being the insurer is liable to indemnify the said liability.
58. Considering the fact that 2nd and 3rd petitioners are unmarried and 2nd petitioner got job on the compensatory ground and 1st petitioner is getting family pension, it is thought just and proper to apportion the compensation amount amongst them at 35:20:45 respectively. Accordingly, petitioners are entitled for the compensation of Rs.24,62,800/- at 35:20:45 together (SCCH-15) 30 MVC.4504/2013 with interest at the rate of 8% p.a. from the date of petition till its realization in its entirety from 2nd respondent. Issue No.2 is answered accordingly.
59. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioners are entitled for the compensation of Rs.24,62,800/- at 35:20:45 together with interest at the rate of 8% p.a. from the date of petition till its realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount all 1st, 2nd and 3rd petitioners shall deposit Rs.5,00,000/-, Rs.2,50,000/- and Rs.7,00,000/- respectively in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest as well as cost to be paid to the petitioners individually through account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
(SCCH-15) 31 MVC.4504/2013Draw a decree accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court by me on this the 28th day of August, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1: B.U.Indira PW2: Jayaprakash
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: M.R.Ramesh RW2: C.K.Suryaprakash RW3: Sunil Ramesh , LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONERS:
Ex.P1 True copy of FIR along with Complaint Ex.P2 True copy of Spot Mahazar Ex.P3 True copy of Spot Sketch Ex.P4 IMV Report Ex.P5 Inquest report Ex.P6 PM report Ex.P7 Reply to Notice u/s 133 of MV Act Ex.P8 Notarized copy of ID Card issued by KSRTC (compared with original found correct and returned) Ex.P9 Notarized copy of Salary Certificate(compared with original found correct and returned) Ex.P10 Notarized copy of Memo issued by KSRTC dated (SCCH-15) 32 MVC.4504/2013 14.10.1986(compared with original found correct and returned) Ex.P11 Notarized copy of Circular dated 01.01.13 (compared with original found correct and returned) Ex.P12 True copy of Charge Sheet, Ex.P13 Notarized copy of ration card (original shown for perusal), Ex.P14 Notarized copy of voter IDs (original shown for perusal), Ex.P15 Authorization letter, Ex.P16 Notarized copy of employee ID , (original shown for perusal) Ex.P17 True copy of service book of deceased A.K.Aiyanna, (original shown for perusal), Ex.P18 True copy of Order dtd.23.07.2013 passed by Central division, (original shown for perusal), Ex.P19 Pay slips (2 in nos.) for the month of May and June 2013.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 Authorization letter,
Ex.R2 Certified copy of the policy with terms and
conditions,
Ex.R3 The letter written by divisional controller to
Assistant Manager dtd.28.04.2014,
Ex.P3(a) Postal cover,
Ex.R4 True copy of cheque for Rs.5,42,240/-,
Ex.R5 Letter dtd.12.11.2013 written by Divisional
Controller to the Labour Commissioner, Ex.R6 True copy of Form No.A under rule 6(1).
Ex.R7 Authorization letter,
Ex.R8 True copy of insurance policy.
(K.KATYAYINI),
XIII Addl. Judge & Member MACT
Court of Small Causes,
Bengaluru.