Bangalore District Court
Thimmegowda vs Ashok Chakravarthy on 27 January, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 27th DAY OF JANUARY 2016.
MVC.No.1051/2014
****
PETITIONERS: 1. Thimmegowda,
S/o Late.Thimmaiah,
Aged about 65 years.
2. Smt. Gangamma
W/o. Thimmegowda,
Aged about 54 years.
3. Lakshmikantha.T,
S/o. Thimmegowda,
Aged about 33 years.
All are residing at:
No.4th A Cross, 1st Main,
Hanumanthapura, Kasaba
Tumkur.
(By Pleader Sri Venkateshaiah.)
Vs.
RESPONDENT: Ashok Chakravarthy, Major
S/o.Chakravarthy.R
R/at No.579, Kali Temple Road
Kuvempu Nagar 2nd Stage,
Bangalore-14.
(Owner of Bajaj Pulsar motor cycle
bearing No.KA.04/ER-6201)
(By Pleader Sri.Mudduraj )
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JUDGMENT
The petitioner Nos 1&2 being parents and petitioner No.3 being brother of deceased Sudharshana.T have filed this claim petition under Section 166 of Motor Vehicles Act, 1988, claiming compensation of Rs.20,00,000/-for the death of Sudharshana.T in a road traffic accident dated 12-2-2014.
2. The facts of the petition of the petitioners, in nut-shell are as under:
As per averments of the petition, the deceased on 12-2- 2014 died due to rash and negligent riding of Bajaj Pulsar City motor cycle bearing No.KA.04/ER-6201 on 100ft road opposite Fouress company Peenya, Bangalore. It is alleged that the deceased was walking on the left side of the road and at that time, the rider of the above said motor cycle, rode with high speed, in a rash and negligent manner and dashed against the deceased Sudharshana.T. Due to the impact of the accident, Sudharshana.T sustained severe injuries and died in the hospital. It is stated that a sum of Rs.50,000/- was incurred towards transportation and funeral obsequies ceremony.
3. It is stated that at the time of accident, the deceased was hale and healthy and was working as coolie and earning 3 MVC.1051/2014 SCH-16 Rs.10,000/-p.m. The deceased was contributing his entire income towards welfare of his family. It is also stated that, due to the sudden demise of Sudharshana.T , the petitioners were put to great financial loss and mental agony.
4. It is stated that that the Peenya traffic police have registered a case against the rider of motor cycle in Cr.No.35/14 for the offence punishable under Sec.279 and 304(A) of IPC. The respondents, being owner and insurer of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioners. On all these grounds, petitioners prayed for awarding the compensation of Rs.20,00,000/- to them.
5. In response to the notice, the respondent appeared before this Tribunal through his counsel and filed the written statement. The respondent denied in toto all the averments of petition and contended that at the time of purchase of the motor cycle Bajaj Pulsar City bearing No.KA.04/ER-6201, he availed loan from the Indusind Bank and the said vehicle was hypothecated in favour of the said bank. The said vehicle was insured with the United India Insurance Company. It is the specific contention of the 4 MVC.1051/2014 SCH-16 respondent that the Indusind bank itself has agreed to pay the insurance premium regularly to the said United India Insurance Company Ltd., till the date of repayment of the entire installments by him to the said bank. Hence, the respondent contended that insurance company is liable to pay compensation to the petitioners. The respondent submitted that the compensation claimed by the petitioners is exorbitant and excessive. On all these grounds, respondent prayed for dismissal of the petition with costs.
6. On the basis of the above pleadings, my predecessor in office had framed the following issues:
1. Whether the petitioners prove that Sri. Sudharshana.T, succumbed in a road traffic accident that occurred on 12-2-2014, at about 5.00 p.m., on 100ft road, Opp.Fouress Co., Peenya, Bangalore city-58 which was due to the rash and negligent riding of Bajaj Pulsar motor cycle bearing No. KA.04/ER-6201?
2. Whether the petitioners are entitled for compensation amount? If so how much and from whom?
3. What order?
7. To prove the above issues, the petitioner No.2 examined before this Tribunal as P.W.1 and got marked 5 MVC.1051/2014 SCH-16 Ex.P.1 to P.19 documents. The respondent examined himself as RW-1 and got marked documents at Ex.R1 and R.2.
8. I have heard the arguments and perused the materials on record.
9. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
10. It is the specific case of the petitioners that, Sudharshana.T died because of rash and negligent riding of Bajaj Pulsar motor cycle bearing No. KA.04/ER-6201, by its rider. The respondent in his objections admitted that he is the owner of motor cycle, which involved in the accident. No where, the respondent denied the involvement of the offending motor cycle in the accident.
11. PW-1 who is the mother of deceased has filed her affidavit by reiterating the petition averments in her examination-in-chief. Apart from her oral evidence, she has 6 MVC.1051/2014 SCH-16 produced the copy of FIR, complaint, Post-mortem, inquest mahazar, Spot mahazar, Sketch, IMV report and charge sheet as per Ex.P.1 to P.8.
12. On perusal of complaint, it is clear that on 12-2- 2014 at about 4.15 p.m., when the deceased and his uncle by name Nagaraju S/o.Badraiah and another person were proceeding to Coir Board at Peenya Industrial area, at that time, they tried to proceed from Fouress Company on 100ft road, that time, offending motor cycle came in a rash and negligent manner and dashed against the deceased Sudharshana.T. After investigation, the Peenya Traffic police have filed charge sheet against the rider of Bajaj Pulsar motor cycle bearing No.KA.04/ER-6201 as evident from Ex.P.8 for the offence punishable under Sec.279 and 304(A) of IPC. The Post-mortem report was conducted as per report at Ex.P.3 and mahazar is also marked as Ex.P.4. The sketch, which is marked as Ex.6, reveals the position of the vehicle at the time of accident. On perusal of sketch, it reveals that the accident; took place on straight NH-4 road, which is by the side of footpath. The IMV report at Ex.p.9 reveals that involvement of offending motor cycle in the accident.
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13. From the cross-examination of PW-1, it is clear that she was not an eye witness to the accident. There is no much to discussion about the cross examination of PW-1 by the respondent. It is to be noted that, in the entire cross examination of PW-1, even there is no single suggestion denying the involvement of the offending vehicle in the accident.
14. The respondent is examined himself as RW-1 to substantiate the contention that the Bajaj Pulsar City motor cycle bearing No.KA.04/ER-6201 was hypothecated in favour of the Indusind bank as he availed loan from Indusind bank. The motor cycle was insured with the United India Insurance Company. RW-1 further stated that the Indusind bank itself has agreed to pay the insurance premium regularly to the said United India Insurance Company Ltd., till the date of repayment of the entire installments by him to the said bank. Rw-1 further stated that on an enquiry with the bankers for original documents, they refused to give the vehicle documents stating that there is still balance amount payable to the insurance company and the insurance cost will also be accounted in his account.
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15. On combine reading of oral as well as above said documentary evidence. It is quite clear that the accident was due to the rash and negligent riding of respondent himself, case was registered against him by the Peenya Traffic police as discussed above. It is also tobe noted that the respondent was prosecuted in criminal case No.716/14, which could be seen from judgment at Ex.R.1. Though the respondent was acquitted from the criminal case, it makes very clear that the criminal case was registered against him. The respondent has not challenged charge sheet or FIR filed against him. Hence, viewed from any angle, it is quite clear that the accident was the result of rash and negligent riding of offending motor cycle by its driver, because of which, Sudharshana died in the RTA which occurred on 12-2-2014 at about 5p.m. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO 2:
16. In this petition, though the respondent has taken up contention that the Bajaj Pulsar City motor cycle bearing No.KA.04/ER-6201 was hypothecated in favour of the Indusind bank as he availed loan from Indusind bank. The 9 MVC.1051/2014 SCH-16 motor cycle was insured with the United India Insurance Company. RW-1 further stated that the Indusind bank itself has agreed to pay the insurance premium regularly to the said United India Insurance Company Ltd., till the date of repayment of the entire installments by him to the said bank. If the said vehicle paid insurance premium with the United India Insurance Company, there should be some documents, the respondent failed to produce any documents to substantiate the same. Under such circumstances, the stand taken up by the respondent cannot be believed. Hence, this tribunal has come to the conclusion that the offending vehicle of the respondent was not insured with United India Insurance as on the date of accident. If at all, the Indusind bank had paid premium towards insurance policy of the offending motor cycle, at least, the respondent had made some efforts to call for those documents from the bank. In this case, no such effort has been made by him. Hence, this Tribunal can safely come to the conclusion that the vehicle of the respondent was not insured as on the date of accident.
17. As per the petition averments, the deceased was aged about 35years as on the date of accident and he was a 10 MVC.1051/2014 SCH-16 coolie by profession and earning Rs.10,000/-p.m. PW-1 has produced the Post-mortem report and inquest mahazar as per Ex.P.3 and P.4. In these two documents, the age of the deceased was mentioned as 35years. The petitioners have also produced the Election ID card of the deceased at Ex.P.10. But in this election ID car, the date of birth of the deceased is not mentioned. The petitioners have also produced the Aadhaar Card as per Ex.P.15, which discloses deceased date of birth as 1975. Further PW-1 has produced the Transfer Certificate of deceased , in which date of birth is shown as 20-7-1975. So, on the basis of Ex.P.15 and P.16, this tribunal can come to the conclusion that the date of birth of deceased was 20-7-1975. The marks card and certificate are marked as per Ex.P.17 to P.19 reveals that the deceased was pursuing Vocational Education from Pre-University College, Agrahara, Tumkur.
18. The respondent by adducing himself as RW-1 tried to substantiate his stand taken up in the objections statement. The motor cycle respondent was not at all insured with the insurance company. Though he has stated that the Indusind Bank used to pay the premium of his motor cycle as 11 MVC.1051/2014 SCH-16 he availed loan and hypothecated his vehicle to the bank but he failed to prove the same before this Tribunal.
19. It is not in dispute that the deceased was a bachelor at the time of accident. This tribunal on the basis of Ex.P.15 and P.16 has come to the conclusion that the deceased was aged about 39 years as on the date of accident.
20. Now, this tribunal has to adjudicate the income of the deceased. As per the petition averments, the deceased was a coolie by profession and earning Rs.10,000/-p.m., at the time of accident. Absolutely, there are no documents to show the income and avocation of the deceased. But as could be seen from Ex.P.17 to P.19, the petitioner was pursuing Diploma course at Pre-University College, Agrahara, Tumkur. He passed the said examination in First Class. Even though, there are no records to show the income of the deceased, but on the basis of the above said marks card and certificate of Vocation education, it can be safely come to the conclusion that the deceased was studios and could have been earned handful of income, if he had been alive. The deceased was aged about 39 years as on the date of accident. In the absence of any materials to substantiate the income of the 12 MVC.1051/2014 SCH-16 deceased, this tribunal has to determine notional income of the deceased. Looking to the educational documents of the deceased, this tribunal has come to the conclusion that the deceased might have earned Rs.7000/-p.m., if he had been alive. Hence, this tribunal assessed notional income of the deceased as Rs.7000/-p.m. The deceased was aged about 39 years as on the date of accident. The relevant multiplier applicable to the age of the deceased is 15.
21. The Hon'ble Apex court in the ruling reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir Singh and others) held that the future prospects should be adopted even when the person is self employed or were engaged on fixed wages. In para-11 and 12 of said judgment, the Hon'ble Apex court discussed the principles laid down in the Sarla Verma's case reported in 2009 ACJ 1298(SC) and another ruling reported in 2012 ACJ 1428(SC) in Santhosh Devi's case held that even when the person is self-employed or at fixed wages, the future prospectus is to be considered. The Apex court has held that 50% of the actual income of the deceased have to be taken for the future prospectus below 40years and 30% for 13 MVC.1051/2014 SCH-16 the age group of 40-50years and 15% for the age group of 50- 60years is to be added as future prospectus.
22. Further, in another rulings of Apex court reported in Civil Appeal No.4497/2015 between Munnalal Jain and another vs Vipin Kumar Sharma and others) held that the age of the deceased should taken into account for applying the proper multiplier.
23 . In this case, the deceased was aged about 39years as on the date of accident. The deceased was a bachelor at the time of accident. Hence, as per the above said rulings, 50% of actual income is to be taken into account as future prospectus. As per the petition, the parents and brother of the deceased are shown as dependents. Hence, 50% has to be deducted towards his personal expenses. Hence, the following calculations:
(i) Notional income arrived at ...Rs.7000/-p.m.
(ii)50% of (i) above said income to be added as future prospectus ...Rs.3,500+7000/-= ...Rs.10,500/-p.m. Less 50% deducted as personal expenses of the deceased. ...Rs. 10,500- 5250/-= ... Rs.5250/-x12x15= Compensation after multiplier of 15 is applied ... Rs.9,45,000/-14 MVC.1051/2014
SCH-16 The petitioners are entitled for the compensation of Rs.9,45,000/-under the head loss of dependency.
24. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case, since the deceased has left behind his old age parents and unmarried brother, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and 15 MVC.1051/2014 SCH-16 Rs.25,000/- towards cost incurred on account of funeral and ritual expenses.
25. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 9,45,000-00
2. Compensation to the family 1,00,000-00 members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
3. Cost incurred on account of 25,000-00 funeral and ritual expenses Total 10,70,000-00 In all the Petitioners are entitled for compensation of Rs.10,70,000/-.
Interest:
26. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : 16 MVC.1051/2014
SCH-16 (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a. Liability:
27. While answering issue No.1, it was come to the conclusion, that the accident was occurred on account of rash and negligent riding motor cycle bearing No.KA.04/ER6201 by the owner-respondent. The respondent has not insured the motor cycle, as on the date of accident. The respondent being the owner-cum rider is liable to pay compensation to petitioners with interest at 9% p.a. Accordingly, issue No.2 is answered partly in the affirmative.
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28. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs.10,70,000-/- (Rs. Ten lakhs seventy thousand only)- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondent is liable to pay the award amount. He is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1-Father - 40%
Petitioner No.2-Mother - 40%
Petitioner No.3 - brother - 20%
Out of the compensation amount so
apportioned in favour of the petitioner No.1 to 3, 50% is ordered to be invested in the name of petitioner No.1 to 3 in any of the nationalized or scheduled bank of their choice for a period of 5 years. Remaining amount with entire interest is ordered to be released to them, by account payee cheque.
Advocate's fee is fixed at Rs.1,000/-.
18 MVC.1051/2014
SCH-16 Draw an award accordingly.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 27th day of January 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
()()()()() ANNEXURE Witnesses examined on behalf of petitioners:
PW.1 : Smt.Gangamma Documents marked on behalf of petitioners:
Ex.P.1 : Copy of FIR Ex.P.2 : Copy of Statement Ex.P.3 : Copy of PM report Ex.P.4 : Copy of inquest mahazar Ex.P.5 : Copy of Mahazar Ex.P.6 : Copy of Sketch Ex.P.7 : Copy of IMV Report Ex.P.8 : Copy of chargesheet Ex.P.9 to 11 : Notarised copy of election ID cards
Ex.P.12to 15 : Notarised copy of Adhaar cards Ex.P.16 : Notarised copy of transfer certificate Ex.P.17 : Notarised copy of Marks card Ex.P.18 : Notarised copy of diploma certificate Ex.P.19 : Notarised copy of PU marks card Witnesses examined on behalf of respondents:
RW-1 Ashokchakravathi
19 MVC.1051/2014
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Documents marked on behalf of the respondents:
Ex.R.1 - Certified copy of judgment in CC.716/14 Ex.R.2 Copy of DL (SATISH.J.BALI), MEMBER, MACT BANGALORE.