Bangalore District Court
Sudha.A vs Ajit Singh on 6 February, 2024
KABC020023662020
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES
BENGALURU
(SCCH-18)
Dated: This the 06th day of February 2024
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.417/2020
Petitioners 1.Sudha A,
D/o R. Anand,
W/o Late Rakesh T @ Rakesh,
Aged about 31 years,
2. Shakti R,
D/o Late Rakesh T @ Rakesh,
Aged about 2 years,
3. 9 months child not yet named
D/o Late Rakesh T @ Rakesh
Since the petitioner No.2 & 3 are
minors, represented by their
mother and natural guardian
Smt.Sudha A
SCCH-18 2 MVC 417/2020
4. Thangamani
W/o R Thangavelu
Aged about 59 years,
5. Thangavelu R,
S/o Raju,
Aged about 65 years,
All are residing at No. 105,
Ward No.31, 'A' Sathyaraj
Nilayam' M.K. Nagar,
Hagaribommanahalli,
Bellary - 583101.
Also at: 22/B, Maruthinagar,
Yelahanka Main Road,
Yelahanka,
Bangalore- 560064.
No.34, 28th Cross, 1st Main,
Maruthinagar, Yelahanka,
Bangalore - 560064.
(By Pleader Shri H.G. Srinivas)
V/s
Respondents 1. Ajit Singh,
S/o Balwant Singh,
Jain Market Shop No.4,
HP Petrol Pump, NH-8,
Dharuhera Rewari City &
District, Haryana - 123106.
(RC Owner of Lorry bearing
Reg. No. RJ-02-GB-1661)
(Exparte)
SCCH-18 3 MVC 417/2020
2.National Insurance Co. Ltd.,
Regional office,
No.144, 2nd Floor,
Subharam Complex,
M.g. Road, Bangalore - 560001.
(Policy No.376010311910000471
valid from 13.07.2019 to
12.07.2020)
(By Pleader Shri M.T.Nagaraj)
*J U D G M E N T*
This judgment is emerged consequent upon the
petition filed by the petitioners U/S 166 of M.V. Act,
claiming compensation of Rs.1,50,00,000/- on
account of the death of Rakesh T @ Rakesh S/o R.
Thangavelu in a road traffic accident.
FACTS OF THE CASE IN NUTSHELL :
2. Facts leading to the case of the petitioners
forthcoming in the petition that, on the fateful day of
25.09.2019 at about 1.15 a.m., Rakesh T @
Rakesh, was driving a Car bearing registration
No.KA-53-MD-0990, from Devanahalli towards
Bangalore, on extreme left side of the B.B. Road,
SCCH-18 4 MVC 417/2020
near Venkatal Flyover, Yelahanka, Bengaluru, at
that time, a Lorry bearing No.RJ-02-GB-1661,
came with high speed, in a rash and negligent
manner, and dashed behind the motor cycle. Due to
the tremendous impact, the said Rakesh T @
Rakesh fell down and sustained grievous injuries on
his body. Immediately, he was shifted to Lifecare
Hospital, wherein he took the treatment as an
inpatient for 2 days. In spite of best treatment, he
died on 04.10.2019 at home, as the death nexus
with internal injuries.
3. It is further stated in the petition that, prior
to the accident, the deceased was hale and healthy,
and was aged about 33 years. And he was working
as a Class-II Civil Contractor and used to earn
Rs.7,50,000/- per annum, and he was contributing
his entire earnings, for the maintenance of his family,
being the sole bread earner of the family. Due to the
unnatural death of the deceased, the petitioners' life
SCCH-18 5 MVC 417/2020
become dark, miserable and depressed and put to
great financial hardship.
4. It is alleged in the petition that, the accident
was occurred, due to the negligent act of the driver of
the offending vehicle, Lorry bearing registration
No.RJ-02-GB-1661. In this regard, criminal case was
registered against him, in Crime No.221/2019, for
the offences punishable under section 279 and 337
of I.P.C, by the jurisdictional police, on the basis of
the first information, received in this regard. As
such, the respondent No.1 being the RC owner and
the respondent No.2 being the Insurance Company
are jointly and severally liable to pay compensation
to the petitioners. Hence, the petitioners have
approached this court, seeking compensation of
Rs.1,50,00,000/- consequent upon the death of
Rakesh T @ Rakesh in the alleged accident.
5. After registration of the case, as usual,
notices were issued to the respondents. In response
SCCH-18 6 MVC 417/2020
to the notices, the respondent No.1 has not appeared
before the court, remained absent, and placed
exparte. On the other hand, the respondent No.2
had appeared through its counsel and filed the
written statement, in answer to the case of the
petitioner.
6. The respondent No.2, in the written
statement, has not seriously disputed the accident,
and the death of Rakesh T @ Rakesh. But, seriously
disputed the allegation made against the driver of the
Lorry, and the allegation of actionable negligence on
the part of the driver of the offending vehicle Lorry,
Further, stated that, the driver of the offending
Vehicle had no valid and effective driving license to
drive the said vehicle. Further, admitted about the
validity of the insurance policy of the lorry, as on the
date of the accident, and stated that, neither the
owner of the vehicle nor the jurisdictional police have
complied the mandatory provisions of Section 134(c)
SCCH-18 7 MVC 417/2020
and S.158(6) of the M.V. Act in furnishing the better
particulars. It is mainly contended that, the accident
had occurred, due to the negligence of the deceased.
Apart from this, contended that, the compensation
claimed by the petitioners, is highly excessive,
exorbitant and exaggerated. With all these main
grounds, prayed to dismiss the petition, against the
respondent No.1.
7. On the basis of the rival pleadings of both
the parties for final determination of this case,
following issues are framed:
*ISSUES*
1). Whether the petitioners prove
that, Rakesh T @ Rakesh had died
due to injuries sustained by him in a
motor vehicle accident that was
taken place on 25.09.2019 at about
1.15 a.m. On B.B. Road, Venkatala on
flyover, Yelahanka, Bangalore, due to
the rash and negligent driving of the
SCCH-18 8 MVC 417/2020
driver of the Lorry bearing
registration No.RJ-02-BG-11661 in an
actionable negligence ?
2). Whether the petitioners are
entitled for compensation as prayed
for? If so, at what rate? From whom?
3). What order or award?
8. In order to substantiate the case of the
petitioners, petitioner No.1 by name Smt.Sudha A.
stepped in to witness box, on her behalf and also on
behalf of other petitioners, placed her affidavit
evidence, in lieu of examination-in-chief, who was
examined as PW1 in the case on hand. At the time
of her evidence, 17 documentary evidence got
marked as Ex.P1 to Ex.P17. In addition this,
placed the evidence of Retired ASI by name
Rajanna, examined as PW2. Apart from their
evidence, placed the evidence of Dr.Girish H.R.
examined as PW3.
SCCH-18 9 MVC 417/2020
9. On the other hand, to prove the defenses of
the respondent No.2, has examined the Assistant
Manager by name Himendra Karthik Simha as
RW1. At the time of his evidence, placed two
documents as per Ex.R1 to Ex.R5, for
consideration. After completion of the stage of the
evidence, matter was set down for arguments.
10. Heard the argument of both the counsel.
The learened counsel for the petitioners, had filed the
written arguments. and also, relied on some
authorites reported in,
1. 1994-ACJ-1017, Khairullah and another V/s.
Anitha and others,
2. 2011-ACJ-2197 between Abdul Rahim and another
V/s. Sundaresan and another,
3. ILR 2016 KAR 1409 between The General
Manager,ICICI Lombard Gen. Ins. Co. Ltd., V/s.
Rajendrasingh and others,
SCCH-18 10 MVC 417/2020
4. CA6237/2021 (SLP © No. 14360/2016 between K.
Anusha and others V/s. Regional manager Sriram General
Insurance Co. Ltd.,
5. MFA No. 1378/2017 between Sriram General
Insurance Company Limited V/s. Pushpa and
others,
6. 2023 ACJ 2386 between Laxmi Devi and others
V/s Mehboob Ali and others and
7. 2021 ACJ 1 between Kirti and others V/s. Oriental
Insurance Co. Ltd.,
8. MFA 397/2009 (MV) between Smt. Subhashini S.
& others Vs.Sri Appanna & another
9. 2019-ACJ-923 between New India Assurance Co.
Ltd., Vs. R. Nagaraj & another
11. With due respect, I have gone through the
propositions laid down and the observations made in
the aforesaid authorities, on the point of appreciation of
evidence in claim petition, and what are all the points to be
considered when the defence has been taken about contributory
negligence and also observed and discussed about the legal
point when there is an absence of PM report. stating that, that
SCCH-18 11 MVC 417/2020
situation, cannot be said that fatal to the case of the claimants,
when there is a clear evidence with respect to the nexus
between the accidental injuries and subsequent to the death of
the injured. It is also forthcoming in the authorities relied on by
the learned counsel for the petitioners that, the detailed
discussion was made in connection with Rule 109 of Motor
Vehicles Act, holding that, the principle of contributory
negligence is that of petitioners negligence is attracted in part
of his own harm and would does reduce the damages payable to
him and as such it affects the measure of damages. Added to
this discussed in detail about the Sec.149(2) of Motor Vehicles
Act, holding that, if the vehicle had not been parked on the
highway accident would not have happened even if the car was
driven at high speed. Mere failure to avoid the collusion by
taking some extraordinary precaution does not initself
constitute negligence. While discussing the point under Sec.122
of Motor Vehicles Act, observed that, no person in charge of a
motor vehicle, shall cause or allow the vehicle or any trailer to
be abonden or to remain at rest on any public place in such a
position or in such a condition or such a circumstances as to
cause or likely to cause danger, obstruction or undue
inconvenience for other user or public or to the passengers. The
owner of the vehicle has the right to drive the vehicle on the
road and also the right to park the vehicle but the parking of
the vehicle cannot cause any danger or obstruction to the
SCCH-18 12 MVC 417/2020
passengers. It is a reasonable restriction and emanates from a
duty to take care. Apart from this, in the authority, there was a
detailed discussion in connection with deduction of personal
expenses with respect to the deceased by counting the numbers
of the dependents. Added to this, in the subsequent authority
relied on by the learned counsel for the petitioners, on
18.01.2024 there is a clear narration about pulmonary
embolism and its effects stating that pulmonary embolism could
be caused only on account of secondary infection, if a person
has sustained fracture. Apart from this, highlight in the
authority relied on dated 10.01.2024 with respect to the
awarding compensation, on the head of marital pleasure to the
wife, when the husband had sustained grievous injuries
consequently, which caused amputation of both legs below hip.
12. After hearing the arguments, and on
appreciation of the evidence placed by the petitioners,
I proceed to give my findings on the aforesaid issues
as follows:
Issue No.1: In the Affirmative.
Issue No.2: Partly, in the Affirmative
Issue No.3: As per final order,
for the following:
SCCH-18 13 MVC 417/2020
*R E A S O N S*
ISSUE No.1:
13. It is the specific case of the petitioners
that, due to the actionable negligence on the part of
the driver of the Lorry bearing registration No.RJ-
02-BG-1661, alleged accident had taken place. In
the said accident Rakesh T @ Rakesh, succumbed
to the injuries. The petitioners being the legal
representatives of the deceased filed this claim
petition against the respondents. It is pertinent to
note that, during the proceedings of the case, the
parents of the deceased, the petitioner No. 4 and 5
were died, and their respective death certificates were
placed on record, as per Ex.P.16 and Ex.P.17.
14. On the other hand, the respondent No.2,
had strongly denied the allegation of the actionable
negligence on the part of the driver of the offending
vehicle Lorry. It is the strong contention of the
respondent company that, the deceased being the
SCCH-18 14 MVC 417/2020
driver of the car, driving the vehicle, in a rash and
negligent manner, which caused accident and its
consequences. As there is no any fault on the part of
the driver of the Lorry. On the basis of rival
contentions of both the parties, let me to discuss the
evidence available on record, in order to come to the
proper conclusion with respect to the above fact in
issue.
15. On going through the above issue, burden
is on the petitioners, to prove the same, on the touch
stone of preponderance of probabilities. To discharge
the burden lies on them, the petitioner No.1 by name
Sudha A being the wife of the deceased, on her
behalf and also on behalf of other petitioners relied
on her affidavit evidence, wherein, she reiterated the
main petition averments, mainly with respect to the
actionable negligence on the part of the driver of the
offending vehicle Lorry, which caused accident, as
well as death of her husband.
SCCH-18 15 MVC 417/2020
16. On the other hand, the respondent
company had placed the evidence of RW.1-
Himendra Karthik Simha, the said witness filed
affidavit and additional affidavit by reiterating all the
contentions forthcoming in the written statement to
the effect that, the deceased was not sustained any
grievous injuries and there is no PM and no charge
sheet for Sec.304A of IPC. As such, there is no nexus
between the accident and injuries sustained by the
deceased as on the date of the accident. Further,
strongly denied the allegation of the actionable
negligence on the part of the driver of the Lorry.
17. In addition to this at the time of the
evidence of the petitioners, relied on the evidence of
Rajanna, Retired ASI and the investigation officer of
Crime No.221/2019, as PW2. At the time of his
evidence, stated that, the alleged accident had taken
place within the jurisdiction of Yelahanka Traffic
Police Station. Immediately after the accident, his
SCCH-18 16 MVC 417/2020
officials shifted the injured to the hospital and
received the police intimation. Immediately he had
been to the hospital on 25.09.2019. But he could not
recorded the statement of injured, as he lost his
conscious, at that time. Subsequently he had not
made an effort to approach the injured, to get his
statement.
18. Another witness Dr. Girish H.R. at the
time of his evidence, deposed that, he had treated Mr.
Rakesh at Lifecare ICU hospital on 25.09.2019. The
said Rakesh had sustained undisplaced fracture of left
accetabulum anterior rim, roof and posterior rim and
column and lacerated wound on sub mandibular region.
In this regard, he was treated non-operatively with skin
traction, suturing done for cut lacerated wound and
under the chin patient was treated with antibiotics and
supportive medication. Thereafter, discharged on
27.09.2019. At the time of discharge, he was advised
to continue medication for hypertension and diabetes,
mellitus and other cardiac medication. Subsequently,
SCCH-18 17 MVC 417/2020
he came to know that on 04.10.2019 he was died.
Further, in his evidence, he has opined that, the
death could be resulted to the complications of grievous
injuries due to road traffic accident like Mayocardial
Infarction, deep vein thrombosis, pulmonary embolism.
19. On perusal of examination in chief evidence
of both side, it is pertinent to note that, accident in
question and the death of the husband of the
petitioner No.1, are not disputed point in issue in the
case on hand. But two material points to be
discussed herein, which are disputed by the other
side, firstly in connection with the actionable
negligence on the part of the driver of the offending
vehicle Lorry. Secondly, with respect to the defence
that, there is no nexus between the accidental
injuries and subsequent to death of the deceased. In
this regard it is necessary and important to
appreciate the documentary evidence available on
record for consideration.
SCCH-18 18 MVC 417/2020
20. The petitioners herein to prove their
relationship with the deceased, the same is not
seriously disputed in the case on hand, relied on the
material documents Ex.P.10 to Ex.P.14 aadhaar
cards, as well as the death certificate of the injured.
The recitals of these two documents, clearly evident
about the relationship between the petitioners and
the deceased. When the relationship between the
petitioners and deceased is not seriously disputed by
the other side, more discussion on these documents
do not warrant.
21. Among the police papers which laid down
the foundation in connection with the accident in
question, and in support of the case of the
petitioners, reveal that, alleged accident had taken
place on 25.09.2019. On the same day, one
Basavaneppa gave first information. The said
witness is none other than police official of Yelahanka
Traffic police station, who received information about
SCCH-18 19 MVC 417/2020
the accident, from the public of the accident spot.
On the basis of his information, criminal law set in
motion against the driver of the lorry and also
against the driver of the car, alleging that they
have committed the offences punishable under
Sec.279, 337 and 283 of Motor Vehicles Act. In
the recitals of the Ex.P.2 the complainant has
narrated that, 25.09.2019 when he was on duty in
the night hours, he received information about the
accident from the public. Immediately he rushed to
the spot, and noticed about the accident.
22. It is alleged in the complaint that, the
driver of the lorry without following the traffic rules,
was parked the lorry, at that time the driver of the
car, came in a rash and negligent manner and
dashed to the lorry, which caused accident and its
consequences. The said complaint remained
unshaken. After this complaint, no whisper about
filing counter complaint, for consideration. On going
SCCH-18 20 MVC 417/2020
through the said complaint and narration made in
the column No.10 of the Ex.P.1, it is crystal clear
that, against both the vehicles and its respective
drivers, criminal law set in motion which remained
unquestioned well in time before the competent court
of law.
23. Apart from this, on going through the spot
mahazar conducted by the investigation officer on
25.09.2019, in the presence of panch witnesses also
reflect about involvement of both the vehicles in the
accident, the narration made in the spot sketch
Ex.P.4, depict about the negligence on the part of
drivers of the respective offending vehicles. Another
material document Ex.P.5, report of the motor vehicle
inspector, goes to show that, the Motor Vehicle
Inspector opined that, alleged accident was not due
to any mechanical defects of vehicles involved in the
accident. Further, the damages noted in the said
document remained unquestioned. After registration
SCCH-18 21 MVC 417/2020
of the case against both the drivers, no effort has
been made visa-versa by the respective drivers or its
owners, or family members, to prove their innocence.
24. Another material document Ex.P.6 wound
certificate goes to show that, on the history of RTA,
on 25.09.2019 the deceased Rakesh had sustained
grievous injuries of undisplaced fracture left
accetabulum, anterior rim, roof and posterior rim and
column lacerated wound 5x4x2 cm on chin and left cheek.
The injuries mentioned in the said document are not
seriously disputed by the other side. in Support of
the Ex.P.6, on going through the discharge summary
Ex.P.8, reveals that, the Rakesh was admitted in the
hospital on the same date of the accident on
25.09.2019 at Life Care Hospital. He was discharged
on 27.09.2019. On going through the injuries noted
in the said document, as well as mode of treatment
taken by him, in the hospital, reveal about the
severity of the injuries sustained by the Rakesh
SCCH-18 22 MVC 417/2020
consequent upon the accident. Except the said
medical document, with medical bills Ex.P.15, no
other documents available on record for
consideration, in order to know, what are all the
further treatments taken by Mr. Rakesh, subsequent
to his discharge from the hospital. Ex.P11 death
certificate of Rakesh goes to show that, he had died
on 04.10.2019 i.e., within a one week from the date
of discharge from the hospital. No contra materials
from the side of the respondent company, to show
that, there was no connection between the accidental
injuries and the subsequent to the death of Rakesh
after his discharge from the hospital, except
contending that, there is no nexus between the
accidental injuries and the death of Rakesh.
25. It is another strong contention of the
respondent that, in order to know the cause of death
PM report has not been placed for consideration. But
it is well settled law that, in the claim petition non-
SCCH-18 23 MVC 417/2020
production of PM report is not a fatal. Added to this
the evidence of PW.3 clearly speaks that, the death
could be related to the complications of the grievous
injuries sustained by the injured in the accident. On
evaluation of the available evidence on record, on
going through the date of the accident, nature of the
injuries mentioned in the wound certificate and the
discharge summery, and also ongoing through the
date of the death of the injured, prima facie evident
about the accidental injuries and subsequent death
of the deceased, within a span of one week. In
number of decided cases, our own Honourable High
court of Karnataka and the proposition laid down in
the authority relied on by the learned counsel for the
petitioner, it was observed that, absence of the
postmortem report, no ground for rejecting claim.
26. Ultimately, on going through the Ex.P7-
charge sheet, submitted by the investigation officer,
reveals that, charge sheet has been filed against the
SCCH-18 24 MVC 417/2020
driver of the lorry by name Thaleem S/o Asas
Mohammed and also against the deceased T.
Rakesh as well as against one prathap S/o
Thangavelu alleging that, due to the actionable
negligence on the part of the driver of the lorry, as
well as the driver of the car alleged accident had
taken place. At the time of accident, the accused No.2
had no valid DL and the accused no.3 being the
owner of the vehicle, handed over the said car, to the
accused No.2, who had no DL to drive the vehicle as
on the date of the accident. It is crystal clear from the
records that, allegation of actionable negligence made
against the drivers of both the vehicles. After filing
charge sheet, no effort from the either side for having
questioned the Ex.P.7 before the competent court of
law to prove their innocence.
27. On the other hand, the respondent
company except the production of authorization
letter, insurance policy, police notice, reply to the
SCCH-18 25 MVC 417/2020
police notice, no other documentary evidence placed
on record, to show that, due to the sole negligence on
the part of the deceased, accident and its
consequences were taken place. Further, no evidence
from the side of the company, to prove the innocence
of the driver of the lorry. Even the respondent No.1
being the owner of the said lorry remained as silent
spectator without challenging the case of the
petitioners
28. Along with the above discussions, let me to
discuss the answers given by the PW.1 to PW3 and
RW.1, during the course of their respective cross-
examination, in order to test the veracity and
genuineness of the case of the petitioners and the
contentions of the respondent company. At the time
of cross-examination of PW.1, stated that, she has
not witnessed the accident. But admitted that, as on
the date of accident, her husband was driving the car
but in connection with having DL and insurance
SCCH-18 26 MVC 417/2020
policy she has not given proper answer by pleading
her ignorance by answering as:
ಪೋಲೀಸ್ ದಾಖಲೆಯ ಪ್ರಕಾರ ವಾಹನಕ್ಕೆ ವಿಮೆ ಇರಲಿಲ್ಲ ಮತ್ತು ಚಾಲಕನಿಗೆ ಪರವಾನಿಗೆ
ಇರಲಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿ ನನಗೆ ದಾಖಲೆಗಳ ಬಗ್ಗೆ ಗೊತ್ತಿರುವುದಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾರೆ.
29. Further, at the time of cross-examination,
some of the answers given by her to the questions
put to her by the learned counsel for the respondent
company evident that, at the time of occurrence of
the accident, she gave birth to the petitioner No.3 and
she was in the home, in such a pitiable situation, one
cannot expect proper answers from her about cause
of death, production of PM report, inquest mahazar
and also in connection with the recitals of the final
report. In page No.9 para No.1 of the cross-
examination of the PW.1, she clearly denied the
suggestion that, due to the sole negligence of her
husband, alleged accident and its consequences were
taken place, but not denied the suggestion that,
charge sheet also been filed against her husband.
SCCH-18 27 MVC 417/2020
Further, she denied the suggestion that, the injuries
sustained by her husband, are all not severe in
nature.
30. At the time of the evidence of the PW.2, by
treating him as hostile witness, on the leave of the
court, when the learned counsel for the petitioners
put questions, denied the suggestion that, he
intentionally has not taken statement of the
deceased, after his discharge from the hospital. But
he has not given proper answer, actually when he
was obtained the death certificate. But admitted that,
in the final report, there is a whisper about receipt of
death certificate, and in continuation, he stated that,
after getting information about the death of the
husband of the PW.1, not made an effort approach
his family members. At the time of cross-examination
of respondent No.2, admitted that, at the time of
filing final report, the deceased was still injured. He
has not executed any inquest mahazar, since he had
SCCH-18 28 MVC 417/2020
not received information about his death. Further, he
admitted that, the suggestion that due to the mistake
on the part of the driver of the car, alleged accident
had taken place as per the documents. Along with
his evidence, it is pertinent to note that, alleged
accident had taken place on 25.09.2019, the
husband of the petitioner No.1 had died on
04.10.2019. Final report had filed on 20.03.2020. It
is crystal clear from the recitals of the charge sheet
that, at the time of filing final report, death of the
deceased was in the notice of the investigation officer.
Further, the narration of the history of the case in the
charge sheet, evident about the nexus between the
accidental injuries and the death of the Rakesh.
31. At the time of cross-examination of PW.3
in para No.2 admitted that, on the basis of PM report
one can detect cause of death. But denied the
suggestion by answering as follows:ರಾಕೇಶ್ರವರು ಆತ್ಮ ಹತ್ಯೆ
ಮಾಡಿಕೊಂಡು ಮೃತಪಟ್ಟಿರುತ್ತಾರೆಂದರೆ ಸಾಕ್ಷಿ ಗಾಯದಿಂದ ಆದ ಅಡ್ಡ ಪರಿಣಾಮದಿಂದಾಗಿ ಅವರು
SCCH-18 29 MVC 417/2020
ಮೃತಪಟ್ಟಿರುತ್ತಾರೆ ಎಂದು ಹೇಳುತ್ತಾರೆ.Further in connection with other
suggestions he answered as follows: ಕಾಲಿಗೆ ಗಾಯವಾದರೆ ಯಾವ
ವ್ಯ ಕ್ತಿಯು ಸಹ ಮೃತಪಡುವುದಿಲ್ಲ ಸಾಕ್ಷಿ ಗಾಯದ ಪರಿಸಿ್ದತಿ ಉಲ್ಬ ಣಗೊಂಡಾಗ ಸಾಯುವ ಪರಿಸಿ್ಧತಿ
ಬರುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ. ಪಲ್ಮ ನರಿ ಎಂಬೋಲಿಸಂನಲ್ಲಿ ಕೂಡಲೇ ಮೃತಪಡುವ ಸಾಧ್ಯ ತೆ ಇರುತ್ತದೆ.
32. Apart from this, further questions put to
the witness in para No.3 and 4 by looking into the
wound certificate as well as discharge summary will
not helpful to come to the conclusion to believe the
defence of the respondent company that, there is no
nexus between accidental injuries and the death of
Rakesh. No doubt alleged accident taken place on
25.09.2019, Rakesh had died on 04.10.2019, present
petition has been filed on 24.01.2020 to disbelieve
the accident and the death of Rakesh consequent
upon the said accident, no convincing and cogent
evidence is available on record from the side of the
respondent company. If at all the death was not due
to accidental injuries to prove the said crucial
defence, the insurance company has not made an
SCCH-18 30 MVC 417/2020
effort, to appoint the investigator of the company to
get proper report in support of their defence.
33. At the time of cross-examination of RW.1
admitted that, in the charge sheet, there is a
narration that, after discharge from the hospital
Rakesh was dead in the home. In para No.2 of the
cross-examination, admitted that, alleged accident
had taken place in the mid night and also admitted
the suggestion put to him by the learned counsel for
the petitioners as follows:
ಆಪಾದಿತ ವಾಹನವನ್ನು ಯಾವುದೇ ಸೂಚನೆ ನೀಡದೆ ನಿಲ್ಲಿಸಿದ್ದ ಪರಿಣಾಮವಾಗಿ ಅಪಫ.ಾತ ಆಗಿದೆ
ಎಂದು ಅಂತಿಮ ಆರಕ್ಷಕ ವರದಿಯಲ್ಲಿ ನಮೂದು ಮಾಡಲಾಗಿದೆ ಎಂದರೆ, ಸಾಕ್ಷಿ ಅದು ತಪ್ಪು ಅಂತಿಮ
ಆರಕ್ಷಕ ವರದಿ ಎಂದು ಉತ್ತರಿಸಿರುತ್ತಾರೆ.
34. Apart from this, denied the suggestion that,
due to sole negligence on the part of driver of the
lorry accident and its consequences were taken place.
At the time of further cross-examination in
connection with the vehicle number nothing has been
elicited to disbelieve the involvement of the offending
lorry in the accident along with car. Overall
SCCH-18 31 MVC 417/2020
appreciation of the answers given by the witnesses on
comparison with the police documents, it is crystal
clear that against the drivers of both the vehicles
charge sheet has been filed. The narrations made in
the police papers, clearly evident about contributory
negligence on the part of drivers of both the vehicles.
Along with this point, on going through the
statements of witnesses by name Mohammed
Mushak, Naresh, Hemanth also, reflect about the
manner of the accident.
35. As such it is crystal clear that, there was
negligence on the part of drivers of both the vehicles,
to cause accident. If at all, the driver of the lorry was
careful in parking his vehicle accident could have
been avoided. At the same time, if at all deceased was
careful while driving his vehicle, by observing all
traffic rules and regulations, with moderate speed,
could have avoided the accident and its
SCCH-18 32 MVC 417/2020
consequences. Hence both the drivers are responsible
for the accident.
36. Accordingly, the petitioner's assertion that,
due to the sole negligence of the driver of the lorry in
question alleged accident taken place is not wholly
tenable under law, as due to negligence of the drivers
of both the vehicles accidental in question had taken
place. Though the petitioners have placed satisfactory
evidence against the driver of the Lorry, it is also true
that, final report also been filed against the deceased.
Accordingly, I am answering the above Issue No.1 in
the Affirmative.
ISSUE No.2:
37. Now coming to the point of quantum of
compensation for which, the petitioners are entitle is
concerned, every legal representative who suffers on
account of the death of a person, due to a motor vehicle
accident, should have remedy for realization of
compensation. Since in the death case, the legal heirs
are the claimants. In the case on hand, the
SCCH-18 33 MVC 417/2020
relationship of deceased with the petitioners is not in
dispute. At the same time, the documents produced
by the petitioners, to prove their relationship with the
deceased marked at Ex.P10, Ex.P12 to Ex.P14. The
same is not disputed by the other side, by placing
contra materials.
38. Another aspect to be considered herein, on
going through the age particulars of the petitioners,
petitioner No.1 in her young age lost the love and
affection of her husband along with backbone of the
family. Petitioner No.2 and 3 being minor children
lost the love and affection of their father. The
petitioner No.4 and 5 as on the date of petition
though filed claim petition being the dependents of
their deceased son, subsequently during the
proceedings of the case reported to be dead by filing
the respective death certificates as per Ex.P.16 and
Ex.P.17. As per the said documents on 13.12.2020
both petitioner No.4 and 5 were died. Hence
SCCH-18 34 MVC 417/2020
petitioner No.1 to 3 alone being the wife and children
of the deceased remained as dependents/claimants
in the case on hand. The respondents herein have
not produced any documents on record, to show the
independent economic status of the petitioners.
Further, to disprove their dependency, with the
deceased, during his life time. By taking into
consideration of all these factors, along with the
evidence of PW1, it is crystal clear that, the
petitioners were the dependents to the deceased
during his lifetime.
39. The petitioners herein, to prove the actual
age of the deceased, as on the date of the accident,
petitioners have produced Aadhar Card marked at
Ex.P10, for consideration. On going through said
document, the date of birth of the deceased has been
mentioned as 28.02.1986. The accident was
occurred on 25.09.2019. If the said document is
taken into consideration, as on the date of the
SCCH-18 35 MVC 417/2020
accident, deceased was aged about 33 years. The
said document remained unquestioned by the other
side. Hence, I am of the view that, as on the date of
the accident deceased was aged about 33 years. For
his age, multiplier '16' is applicable as per the ratio
in "Sarala Verma" Case.
40. In connection with the work of the
deceased is concerned, in the main petition and also
in the evidence of PW1, stated that, he was working
as a Class-II Civil Contractor and was earning
Rs.7,50,000/- per annum. In support of this stand
of the petitioners, and to prove the income of the
deceased, have produced IT returns as per Ex.P9.
The said IT returns are of the year 2015-2016, 2016-
2017, 2018-2019. Alleged accident had taken place
on 25.09.2019. Hence it is apt to take the income tax
returns of 2018-2019. In the said year the deceased
had declared his income as Rs.5,37,702/-. Net
Taxable income has been mentioned as Rs.40,624/-.
SCCH-18 36 MVC 417/2020
If the tax amount is deducted with the total declared
income, it comes around Rs.4,97,078/- per year.
41. Another point to be taken in to
consideration herein that, that, as per the petition, 3
persons were depending on the earnings of the
deceased, during his lifetime. In this regard, the
deduction of the personal and living expenses is
concerned, the principle laid down by the Honorable
Supreme Court in Sarala Verma Case at para
No.14 is to be considered.
42. Apart from this, it is also relevant to
discuss, that the Honorable Supreme Court in the
decision reported in,
2018 SAR (Civil) 81. National Insurance
Company Limited V/s Pranay Sethi and others,
" It was observed that, "While determining the
income, an addition of 50 per cent of actual salary
to the income of the deceased towards future
prospects, where the deceased had a permanent job
and was below the age of 40 years, should be
made. The addition should be 30 per cent, if the
age of the deceased was between 40 and 50 years.
In case the deceased was between the age of 50
and 60 years, the addition should be 15 per cent.
Actual salary should be read as actual salary less
SCCH-18 37 MVC 417/2020
tax. In case the deceased was self-employed or on
a fixed salary, an addition of 40 per cent of the
established income should be the warrant where
the deceased was below the age of 40 year. An
addition of 25 per cent where the deceased was
between the age of 40 to 50 years. An addition of
25 per cent where the deceased was between the
age of 40 and 50 years and 10 per cent where the
deceased was between the age of 50-60 years
should be regarded as the necessary method of
computation. The established income means the
income minus the tax component. "
43. Further, in connection with the deduction
of personal and living expenses is concerned, it is
settled that, "where the deceased was married, the
deduction towards personal and living expenses of the
deceased should be one third (1/3rd) where the number of
dependent family members is 2 to 3, 1/4 th where the number of
dependent family member is 4 to 6 and one fifth (1/5 th ) where
the number of the dependant family members exceeds six ." In
the light of the above proposition, in the case on
hand, 1/3rd has to be deducted towards personal
and living expenses out of the total compensation. In
the present case, deceased was aged about 33
years, as on the date of the accident. For this age
multiplier "16" is applicable. And by relying on the
aforesaid principle laid down in the Pranay Sethi's
SCCH-18 38 MVC 417/2020
case with respect to the age of the petitioner and also
on going through the nature of the occupation
forthcoming in the petition averments, it is evident
that, the deceased was not having permanent job
and accurate income for consideration, except the
documents of income tax returns. As per the above
discussion total income of the deceased prior to the
accident has been taken as Rs.4,97,078/-. By taking
into consideration of age of the deceased, future
prospect of 40% is to be taken into consideration it
comes around (Rs.4,97,078/- + 1,98,831/-) =
Rs.6,95,909/-. Added to this, 1/3rd has to be
deducted towards personal and living expenses in
the income of the deceased. Thus net loss income
comes to Rs.4,63,939/- (Rs.6,95,909-
Rs.2,31,970/-). This income has to be multiplied by
multiplier "16". Which comes to Rs.74,23,024/- .
44. Apart from this aspect, in connection with
the loss of estate, consortium, and with respect to the
SCCH-18 39 MVC 417/2020
funeral expenses, to calculate the quantum of the
compensation under the aforesaid heads, it is
relevant to note herein the following authority,
2018 SAR (Civil) 81. National Insurance Company
Limited. V/s Pranay Sethi and others,
.
The Hon'ble Apex Court discussed various aspects in connection with the claim petition filed by the claimants for compensation. And also observed that while determining the claim petition, the reasonable figures on conventional heads, viz., loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amount should be enhanced at the rate of 10% in every three years
45. In the light of the proposition laid down in the aforesaid case, I am of the view that, in addition to this, the petitioner No.1 being the wife of the deceased, the petitioner No.2 & 3 are the minor children of the deceased, are entitled for sum of Rs.40,000/- in the head of loss of consortium. Further, the petitioners are also entitled for sum of Rs.15,000/- towards funeral expenses. And also the petitioners are entitled for sum of Rs.15,000/- in the SCCH-18 40 MVC 417/2020 head of loss to the estate. Further the petitioners are entitled for Rs.10,000/- towards transportation of dead body. Apart from this, it is to be note that, in Pranay Sethi's case, the Honourable Apex Court, observed that, after expiry of every three years, from the date of the judgment, 10% is to be added to Rs.70,000/- towards conventional heads. Which comes to Rs.7,000/-. Hence, the petitioners are entitle for Rs.77,000/- towards conventional heads.
46. Another point to be discussed herein, about the medical expenses. As per the records, after the accident, Rakesh T @ Rakesh had shifted to Lifecate hospital and admitted as an inpatient from 25.09.2019 to 27.09.2019. Thereafter, he had died on 04.10.2019 at home, the death nexus with internal injuries. During the said period the petitioners have spent Rs.48,000/- towards medical expenses. The petitioners have produced medical SCCH-18 41 MVC 417/2020 bills as per Ex.P15 to the extent of Rs.48,000/-. Other side has not disputed the said medical bills, except the suggestion that, only to get higher compensation medical bills are created and the medical bills are incorporated in the final bill. To substantiate all these factum and to disprove the medical bills no contra materials are available on record. Further suggestion put to the PW1 to the effect that, medical bills and prescriptions are not tallied with each other has been clearly denied by the other side. Hence, the petitioners are entitled for Rs.48,000/- towards medical expenses.
47. Another point in connection with the argument canvassed by the learned counsel for the petitioners with respect to the compensation under the head of lack of marital pleasure is concerned, I have gone through the authority relied on by the counsel reported in 2019 ACJ 923 between New India Insurance Co. Ltd., Vs. R. Nagaraj & SCCH-18 42 MVC 417/2020 another. In the said case in connection with the grievous injury of amputation of two legs suffered by the petitioner, it was observed that the claimant cannot discharge his marital obligations to his wife, therefore, his wife has to be awarded compensation for loss of marital pleasure from her husband. By this material observation, awarded a sum of Rs.5,00,000/- towards lack of marital pleasure. The facts and circumstances of the said case, is not applicable to the facts and circumstances of the present case since consequent upon the accident husband of the petitioner No.1 by name Rakesh T. lost his life. In such a situation, as per the prepositions laid down in the case of Pranay Sethi compensation has to be awarded.
48. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation under the following heads.
SCCH-18 43 MVC 417/2020
Compensation heads Compensation Amount
Towards loss of Rs. 74,23,024
dependancy
Towards loss of Rs. 44,000/-
consortium
Towards loss of estate Rs. 16,500/-
Towards funeral & Rs. 16,500/-
obsequies ceremony
expenses
Towards transportation Rs. 10,000/-
of dead body
Medical expenses Rs. 48,000/-
Total Rs. 75,58,024/-
49. Accordingly, the petitioners herein are entitled to get total compensation of Rs. 75,58,024/- (Rupees Seventy five lakhs, fifty eight thousand, twenty four only), along with the interest at the rate of 6% per annum, as per the proposition laid down by the Honourable High court of Karnataka in, MFA No. 103557/2016, Between Sri Ram General Insurance Company Limited V/S. Lakshmi And Others dated. 20.03.2018. And MFA No.30131/2019 dated.12.5.2020.
SCCH-18 44 MVC 417/2020
LIABILITY:
50. In so far as, liability is concerned, it is the assertion of the petitioners that, due to the negligence on the part of the driver of the offending vehicle Lorry bearing registration No.RJ-02-GB-1661, alleged accident had taken place. In the said accident Rakesh T. @ Rakesh had died. As such, the respondent No.1 being the owner and the respondent No.2 being the insurance company of the offending vehicle Lorry are jointly and severally liable to pay compensation to the petitioners.
51. On the contrary it is the strong contention of the respondent company that, since there is no nexus between the accidental injuries and the death of Rakesh. Further due to the sole negligence on the part of the deceased alleged accident had taken place. Another point highlighted that, charge sheet also been filed against the deceased, who was driving the offending car, as on the date of the accident. As SCCH-18 45 MVC 417/2020 such, the insurance company is not liable to pay any compensation to the petitioners.
52. In the light of these two rival contentions, on the shelter of my detailed discussions on issue No.1, I am of the view that, the petitioners herein, have placed satisfactory evidence on record, to show that, due to the negligence on the part of driver of the lorry accident in question had taken place. At the same time, on perusal of the police papers, once again it is relevant to note that, on the basis of first information given by the complainant, criminal law set in motion against the driver of the lorry bearing Reg. No.RJ-02-GB-1661 and also against the driver of the car bearing Reg. No.KA-53-MD-0990. In the recitals of the complaint, as well as in the column No.10 of Ex.P.1, allegation forthcoming against the both the drivers by narrating as follows:
ಲಾರಿಯ ಚಾಲಕ ತನ್ನ ವಾಹನವನ್ನು ಯಾವುದೇ ಸಂಚಾರ ನಿಯಮವನ್ನು ಪಾಲಿಸದೇ ರಸ್ತೆಯ ಮಧ್ಯ ದಲ್ಲಿ ಅಪಫಾತವಾಗುತ್ತದೆ ಎಂದು ಗೊತ್ತಿದ್ದ ರೂ ಸಹ ಸದರಿ ಚಾಲಕ ಬೆಂಗಳೂರು ಕಡೆಗೆ ಹೋಗುವ ಮಾರ್ಗವಾಗಿ ನಿಲ್ಲಿಸಿದ್ದ ಪರಿಣಾಮ, ಅದೇ ಸಮಯಕ್ಕೆ ಹಿಂದಿನಿಂದ ಬಂದ ಕಾರಿನ ಚಾಲಕ SCCH-18 46 MVC 417/2020 ತನ್ನ ವಾಹನವನ್ನು ವೇಗವಾಗಿ ಮತ್ತು ಅಜಾಗರೂಕತೆಯಿಂದ ಚಾಲನೆ ಮಾಡಿಕೊಂಡು ಲಾರಿಯ ಹಿಂಭಾಗಕ್ಕೆ ಡಿಕ್ಕಿ ಮಾಡಿದ್ದ ಪರಿಣಾಮ ಎರಡೂ ವಾಹನಗಳು ಜಖಂಗೊಂಡಿರುತ್ತದೆ.
53. In this regard on going through the recitals of spot mahazar, spot sketch, IMV report as well as final report marked at Ex.P.3 to 5 and Ex.P.7 reveal the same thing. In the Ex.P.1, it is noted that alleged accident had taken place in the midnight at about 1.15 a.m. In para No.2 of cross-examination of RW.1 at page No.4, the question put to the witness and answers given by him, is necessary to reproduce herein:ಅಪಫಾತವು ರಾಷ್ಟ್ರೀಯ ಹೆದ್ದಾರಿಯಲ್ಲಿ ಮಧ್ಯ ರಾತ್ರಿಯಲ್ಲಿ ಸಂಭವಿಸಿದೆ ಎಂದರೆ ಸರಿ. During that period, it is the duty of the drivers of both the vehicles to take proper care with respect to their respective vehicles while parking as well as while driving the vehicle on national highway. If at all the driver of the lorry was parked the vehicle in a place designated for parking with proper indication by following traffic rules, accident would not have been taken place. At the same time, though the SCCH-18 47 MVC 417/2020 deceased was moving on the national highway, he could have taken proper care while driving his vehicle by looking both side and also by driving the vehicle in a moderate speed, to avoid such a dangerous situations. It is crystal clear from the records that, due to the mistake on the part of both the drivers accident had taken place. To prove the innocence visa-versa no exceptional and extraordinary evidence or documents are available on record for appreciation. As such, both the drivers are responsible for the accident, may be the quantum of negligence is distinct.
54. As per law, parking of motor vehicle, on road, without proper precautions prohibited . When the Lorry parked on the road, with no cautionary radiating triangle, indicators, blinkers, or any other device to warm other vehicles, amounts to negligence as per section 122 of Motor vehicles Act. Any vehicle that is parked on the highway must be careful, so as to not be an obstruction to others travelling on the highway. On the other hand, the driver of the car SCCH-18 48 MVC 417/2020 also, to be careful while driving the vehicle, in the night hours.
55. By looking into the entire police papers along with the appreciation of evidence of both the parties, there is a contributory negligence in the case on hand, and the driver of the lorry was more negligent as on the date of the accident, comparing with the driver of the car. On keen observation of the spot sketch marked at Ex.P.4 and the dmages noted in the Ex.P.5 report of the Motor Vehicle Inspector reveal that, more contribution on the part of the driver of the Lorry to cause accident, and its consequences. As such, it is apt to fix the liability to the extent of 85% and the deceased is negligent to the extent of 15%. Accordingly, the respondent No.1 and 2, being the owner and insurance company of the lorry in question are jointly and severally liable to pay compensation to the extent of 85%. SCCH-18 49 MVC 417/2020
56. As per records policy pertaining to the offending vehicle was valid from 13.07.2019 to 12.07.2020. Alleged accident had taken place on 25.09.2019. There is no documents to show that, there is a violation of terms and conditions of the policy. The Ex.R.2 placed by the RW.1 also discloses about the genuineness of existence of the policy as on the date of accident. Hence the respondent No. 2, being the insurance company and indemnifier, has to satisfy the award to the extent 85% out of the total compensation amount determined by this court with interest. In view of the valid insurance policy, the respondent No.2 is liable to pay the 85% compensation with interest at 6% p.a. from the date of petition till its realization. Accordingly, I am answering the issue No.2 partly in the Affirmative.
SCCH-18 50 MVC 417/2020ISSUE NO.3:
57. In view of my due discussions on issue Nos.1 & 2, I proceed to pass the following;
*O R D E R* The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.75,58,024/-/- (Rupees Seventy five lakhs, fifty eight thousand, twenty four only), along with the interest at the rate of 6% per annum, from the date of the petition till the date of deposit.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the extent of 85%. In view of the valid insurance policy the respondent No.2 being the insurance SCCH-18 51 MVC 417/2020 company, is liable to pay the compensation to the extent of 85% out of the compensation amount determined by this court, with interest at 6% p.a. from the date of petition till its realization within two months from the date of this order.
On the other hand, remaining 15% liability is fixed on the deceased under contributory negligence.
Out of the compensation amount awarded to the petitioners together with interest, the petitioner No.1 is entitled the share of 60%. The petitioner No.2 & 3 are entitled the share of 20% each.
After deposit of the compensation amount together with interest, the petitioner No.1, shall deposit 40% out of her respective share, in any SCCH-18 52 MVC 417/2020 Nationalized/Schedule bank of her choice, for a period of 3 years. And remaining 60% shall be released to her, through due process of law.
Out of the compensation amount together with interest of petitioner No.2 & 3, entire amount shall be deposited in any Nationalized bank/Scheduled till they attain the age of majority. After attaining the age of majority, entire amount shall be released to them, through due process of law. The natural guardian mother of the minor petitioners is at liberty to withdraw the periodical interest, accrued on their deposited amount, from time to time, and directed to be utilized the same, to the welfare of the minor children.
Advocate fee is fixed at Rs.500/-.
SCCH-18 53 MVC 417/2020Draw award accordingly.
(*Dictated to the stenographer directly on computer, corrected by me and then pronounced in open court on this the 06th day of February 2024*).
(V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.* ANNEXURE List of witnesses examined on petitioner's side:
PW-1 Smt.Sudha A PW-2 Sri. Rajanna PW-3 Dr.Girish H.R.
List of documents exhibited on petitioner's side:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot mahazar
Ex.P4 Spot sketch
Ex.P5 IMV report
Ex.P6 Wound certificate
Ex.P7 Charge sheet
Ex.P8 Discharge summary
Ex.P9 3 Income Tax returns
Ex.P10 Notarized copy of Aadhar Card of
deceased
Ex.P11 Notarized copy of death
certificate of deceased
SCCH-18 54 MVC 417/2020
Ex.P12 to 14 Notarized copy of Aadhar cards
Ex.P15 2 Bills for Rs.48,000/-
Ex.P16 & 17 Death certificate of petitioner
No.4 & 5
List of witnesses examined on respondents' side:
RW1 Himendra Karthik Simha List of documents exhibited on respondents' side:
Ex.R1 Authorization letter
Ex.R2 Insurance policy
Ex.R3 Authorization letter
Ex.R4 Police notice
Ex.R5 Reply notice
II ADDL.SMALL CAUSES JUDGE
& ACMM, Bengaluru. *