Bangalore District Court
) M.K.Hanumanthappa vs S.Suresh Kumar on 23 September, 2015
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BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 23rd DAY OF SEPTEMBER'2015
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
MVC No.4485/2014
Petitioners: 1) M.K.HANUMANTHAPPA,
S/o.Late Kenchappa,
Aged about 58 years,
2) SMT.SAKAMMA,
W/o.M.K.HANUMANTHAPPA,
Aged about 50 years,
3) K.H.VIJAYAKUMAR,
S/o.M.K.Hanumanthappa,
Aged about 27 years,
All are residents of
Honnanayakanahalli,
Garaga Post, Chennagiri Taluk,
Davanagere District.
(By Sri B.V.Suhakar, Advocate)
Vs.
Respondents: 1. S.SURESH KUMAR,
S/o.Shivarudre Gowda,
Major, Residing at
No.21/8,
Azeema Building,
A.V.Road, Kalasipalyam,
Bangalore-2.
(R.C.Owner of Bus bearing
Reg.No.KA.35/A.3942)
2
2. ICICI Lombard General
Insurance Co., Ltd.,
No.89, II Floor,
S.V.R.Complex,
Hosur Main Road,
Madivala,
Bangalore-68.
(Insurer of Bus bearing
Reg.No.KA.35/A.3942)
Insurance Cover Note
No.PCVR11092797
Valid from 04.10.2013 to
03.10.2014.
(Respondent No.1 - Exparte
Respondent No.2 - Sri A.N.Hegde,
Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.50 lakhs from the respondents with regard to the death of Manjappa K.H., in the road traffic accident that occurred on 26.06.2014 at about 09.30 pm., on Bangalore- Nelamangala NH 4 Road, near Anchepalya, Dasanapura Hobli, Bangalore North Taluk.
2. Brief facts of the case are that:-
It is contended in the petition that on 26.06.2014, the deceased Manjappa K.H., was crossing the N.H.4 Bangalore-Nelamangala Road near Anchepalya, Dasanapura Hobli, Bengaluru North Taluk by observing the traffic rules and regulations and at that time, a bus bearing registration 3 No.KA.35/A.3942 came on the said road without giving any signal in rash and negligent manner and all of a sudden hit against Manjappa K.H., on account of which, Manjappa suffered grievous injuries and he was immediately shifted to Premier Sanjeevini Hospital wherein first aid was given and when he was being shifted to M.S.Ramaiah Hospital, died on the way to the hospital. It is contended that the accident has occurred on account of the rash and negligent driving of the bus by its driver and the Police have registered a case against the driver of the bus and the deceased was hale and healthy and he was aged 30 years and working in Toyota Kirloskar Company and drawing a salary of Rs.23,473/- per month. It is further contended that the petitioners were depending upon the income of the deceased and the deceased was contributing major portion of his income towards the maintenance of the petitioners and petitioners No.1 and 2 are the parents and petitioner No.3 is the brother of the deceased and the petitioners have spent Rs.50,000/- for treatment and further sum of Rs.1,00,000/- towards funeral and obsequies. It is contended that the accident has occurred due to the negligence of the driver of the bus and the respondent No.1 and 2 being the owner and insurer of the LGV, are liable to pay compensation to the petitioners.
3. In pursuance of filing of the petition, this Tribunal issued notice to the respondents and in response to the same, the respondent No.2 appeared through his counsel and filed detailed statement of objections and the respondent No.1 remained absent and hence, he has been placed exparte.
4. The respondent No.2 in the statement of objections has contended that except those which are specifically admitted herein, other averments are 4 denied. The respondent No.2 does not admit that the vehicle bearing No.KA.35/A.3942 was insured with the respondent No.2. It is contended that the respondent No.1 insured has not furnished the particulars of the vehicle including permit, FC and driving licence of the person who was driving the vehicle and the cause for accident giving rise to the above claim petition and without these particulars, the insurer finds it difficult to submit an effective statement of objections. Since these particulars are not immediately available, the respondent No.2 insurer is obliged to file this statement and hence, the statement is filed with liberty to file elaborate statement of objections. The insurer's liability is subject to the validity of driving licence and other documents referred to above. The owner of the vehicle failed to comply the provisions of MV Act under Section 134(c) of the MV Act. The concerned Police Authority has not complied with the provisions under Section 158 of MV Act. The averments in Columns No.3, 4, 5, 6, 7, 8 to 14, 21 and 22 are expressly denied as false and the respondent No.2 has put the petitioners to strict proof of the same.
5. It is contended that the alleged accident has occurred only due to the negligence of the deceased who tried to cross the road without observing the on coming vehicles and that the deceased was trying to cross the road where there was no zebra crossing and hence, the accident has occurred due to the negligence of the deceased and no actionable negligence can be attributed to the driver of the bus.
6. The respondent No.2 has also denied the averments regarding the income, medical expenses and the age of the deceased and contended that the petitioners have to prove all other averments and hence, respondent No.2 has prayed to dismiss the claim petition as against him. 5
7. In view of contentions raised by both the parties, the following issues are framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 26.06.2014 at about 09.30 pm., near Anchepalya, Dasanapura Hobli on Bangalore-Nelamangala NH 4 Express Road within the jurisdiction of Madanayakanahalli Police Station on account of rash and negligent driving of the bus bearing registration No.KA.35/A.3942 by its driver?
2) Whether the respondent No.2 proves that the accident occurred on account of negligence act of the deceased?
3) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4) What Order?
8. In order to substantiate their case, on behalf of the petitioners', the petitioner No.1, who is the father of the deceased, has been examined as PW
1. The petitioners have also examined one more witnesses as PW 2. In all 23 documents came to be marked on behalf of the petitioners as Ex.P.1 to P.23.
9. On the other hand, the respondent No.2 has examined its Officer as RW 1 and through him, Ex.R.1 was marked.
10. I have heard the petitioners' counsel. The counsel for the petitioners has also relied on the following decisions:-
1) 2015 AIR SCW 3105 6
11. The counsel for the respondent No.2 has relied upon the following judgments:-
1) ILR 2004 KAR 1104
2) ILR 1998 KAR 1934
12.Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Partly in the affirmative,
2) Partly in the affirmative,
3) Partly in the affirmative,
4) As per final order, for the following:-
REASONS
13. Issue No.1 and:- Both these issues are taken up together for discussion, as they are interconnected to each other and the evidence is likely to overlap.
14. It is the contention of the petitioners that the deceased succumbed to the injuries in a motor vehicle accident that occurred on 26.06.2014 at about 09.30 pm., on Nelamangala-Bengaluru NH 4 Express Road, near Anchepalya, Dasanapura Hobli, Bengaluru North Taluk on account of the rash and negligent driving of the bus bearing No.KA.35/A.3942 by is driver. Thus, the allegation is made against the driver of the bus that all of a sudden, the bus came on that road and dashed against the deceased. The petitioners in order to prove these allegations, examined the first petitioner as PW 1 and in his evidence, PW 1 has got marked the FIR, Sketch, Mahazar, IMV Report and Charge Sheet as Ex.P.1 to P.4 and P.6 and these are the relevant documents regarding the proof of negligence.
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15. PW 1 has been cross-examined by the counsel for the respondent. In his cross-examination, it is elicited from him that he was in his village at the time of the accident and friend of his son has called him over the phone and informed about the accident and he has sent another son immediately after the information and his another son Vijayakumar is working as coolie. He says that he saw the place of accident. It is suggested to him that his son himself is responsible for the accident, since he tried to cross the road where there is no provision to cross the road and the said suggestion has been denied by him.
16. As against the same, the respondent No.2 has examined its Legal Manager as RW 1 and in his evidence, RW 1 reiterated the averments of the objection statement with regard to the contributory negligence of the deceased in occurrence of the accident. RW 1 has been cross-examined by the counsel for the petitioners. In his cross-examination, he admits that there is no reference that the deceased was crossing the road where there is no any zebra cross. He further admits that the charge sheet has not been challenged. It is suggested to him that the accident has occurred due to the negligence of the driver of the vehicle and the said suggestion has been denied by him.
17. Now, let me appreciate both oral and documentary evidence placed on record by the petitioners and the respondent No.2 in support of their case.
18. On the one hand, the petitioners contend that the accident has occurred on account of the rash and negligent driving of the bus by its driver and on the other hand, the respondent No.2 contends that the deceased was trying to cross the road where there is no provision to cross the road and 8 hence, the accident has occurred due to the negligence of the deceased himself. In support of his contentions, he has relied upon the decision reported in ILR 2003 KAR 1104 (Koosappa Poojari Vs Sadabba and others) wherein it is held as under:-
"MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 (1) - Contributory Negligence - Claimant had crossed the road where he was not supposed to cross - HELD - Certain degree of contributory negligence will have to be attributed to him - If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident
- Pedestrian has to share the negligence along with the driver".
The counsel for the respondent No.2 also relied upon another judgment reported in 2004 ACJ 1091 (A.Anandan Vs. Abdul Azeez and others) wherein it is held thus:
"Negligence - Contributory negligence - Pedestrian - Motorcyclist hit a pedestrian crossing the road and he sustained injuries - Defence that injured was crossing the road without caring for traffic - Neither the motorcyclist was examined nor any other evidence was produced by the defendants - Tribunal held that motorcyclist was responsible for the accident to the extent of 80 percent and the injured 20 percent - Tribunal's finding reversed in appeal and held that motorcyclist was solely responsible for the accident".
19. In this background, on perusal of Ex.P.1 FIR and Complaint, it can be seen that the complaint is lodged by one K.H.Vijayakumar, the brother of the deceased, who has not witnessed the accident, although, he attributes negligence to the driver of the bus for the accident. The petitioners have also produced Ex.P.2, Sketch of the scene of the accident, drawn by the 9 Police during the course of accident, perusal of which shows that the deceased was crossing the busy Nelamangala-Bengaluru NH 4 Road, where there is no zebra crossing, as rightly contended by respondent No.1. It is quite interesting to see that at about 15 feet away from the spot of accident, a skywalk is provided for the pedestrians to cross the busy road and the deceased, having not opted to use the sky walk to cross the road, fatefully tried to cross the road itself by walk, which has a median. That does not mean that the accident has occurred purely on account of the deceased himself. It is the responsibility of a driver of the vehicle to keep his anticipatory reflexes geared to be able to stop vehicle within a short distance while driving a vehicle within the city limits, where it is quite often that the pedestrians try to cross the road even at places where there will be no zebra cross and the driver must be in a position to stop the vehicle at a short distance. Even though the Police after investigation, filed charge sheet against the driver of the bus, but that does not itself conclusive to hold that the accident occurred on account of driver of the bus alone. It is not in dispute that the accident has occurred at 09.30 pm., when the visibility is be little less. Therefore, in all probability, as contended by the counsel for the respondent No.2, it can be said that the accident occurred on account of the contributory negligence of the driver of the bus to the extent of 75% and that of the deceased 25%. Accordingly, I answer issue No.1 and 2 partly in the affirmative.
20. Issue No.3:- It is the case of the petitioners that petitioner No.1 is the father, petitioner No.2 is the mother and the petitioner No.3 is the younger brother of the deceased.
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21. In a case of death in a road traffic accident, while awarding compensation, the age, avocation, income and number of dependents, are the major factors to be taken in to consideration.
22. In the case on hand, the petitioners contend that the deceased was aged 30 years and working as Team Member in Toyota Kirloskar Motor Co., Ltd., with a salary of Rs.23,473/- per month and that the petitioners were entirely dependant on the income of the deceased. These averments are reiterated in the affidavit in the form of examination in chief of PW 1 and apart from the affidavit, the petitioners have also filed Ex.P.10 Original ID Card, Ex.P.11 SSLC Marks Card, Ex.P.12 PUC Marks Card, Ex.P.13 ITI marks Cards, Ex.P.15 Bank Statement, Ex.P.6 Salary Slips 3 in nos and Ex.P.17 Bank Pass Book. PW 1 has been cross-examined by the counsel for the respondent No.2, wherein it is suggested that his son was getting Rs.7,026/- as alary and the said suggestion has been denied by him. He admits that the company has not paid any compensation.
23. Apart from the evidence of PW 1, the petitioners have also examined one A.Sacrates, working as Assistant Manager-HR in Pay Roll Department of Toyota Kirloskar Motor Pvt., Ltd., as PW 2 and in his evidence, PW 2 reiterates that as per the records of their Organization, the deceased was working in their organization as Team Member and his last drawn salary is Rs.20,436/- and in support of his evidence, he has produced the Authorisation Letter, Copy of his ID Card, Copy of Appointment Letter, Salary Revised Slips, 3 Pay Slips and Attested copy of Time Card as Ex.P.18 to 23.
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24. PW 2 has been cross-examined by the counsel for the respondent No.2, wherein it is elicited that he is working as Assistant Manager in Payroll Section and one Namruth I.M., is the head of their Section and the payments are made to employees from their Section and they have maintained electronic attendance register in the company and he has produced the said register before the Court and he further says that the deceased worked for 9 days 58 minutes in March'2014 and hence, his salary was Rs.6,264/-. He further says that his basic salary was Rs.7,726/- and the gross salary is Rs.16,675/- for May'2014 for a period of 30 days and Rs.2,58,048.95 is the gross salary for 2013-14 and the taxable income is Rs.1,73,100/- and the deceased was not an income tax assessee and he was not eligible for ESI benefit since his gross salary exceeds Rs.16,000/-. He says that they give promotion based on the performance of the employee ie., given in once in every 3 years. It is suggested to him that the deceased was not having any promotional avenues and he is giving false evidence before the Court and the said suggestion has been denied by him.
25. The respondent No.2 though examined RW 1, but the evidence of RW 1 is silent regarding the age, avocation and income of the deceased and the evidence of RW 1 is concentrated on the contributory negligence of the deceased only.
26. Now, let me appreciate both oral and documentary evidence available before the Court with regard to the age, avocation, income and the loss dependency of the petitioners on account of the death of the deceased.
27. Here it has to be seen that the SSLC Marks Card, PUC Marks Card and ITI Certificates and the Apprentice Training Certificate of the 12 deceased marked as Ex.P.11 to 14 coupled with the Bank Statement marked as Ex.P.15, Pay Slip for the months of January, February and May'2014 and the Bank Pass Book of the deceased marked as Ex.P.17 and also the evidence of PW 2 and the documents marked through him in his evidence such as Ex.P.20 Appointment Letter, Ex.P.21 Salary Components and Ex.P.22 Salary Certificates for March'2014, April'2014 and Marh'2014, clearly reveal that the deceased had a varied income, in as much as, the salary of the deceased for March'2014 was Rs.6,264/- and for April'2014, it was Rs.7,467/- and for May'2014, it was Rs.20,436/-, since the industry in which the deceased was working being a production industry, it is quite natural that the salary depends upon the production. Thus, I deem it just and proper to assess the income of the deceased on an average, which works out to Rs.16,675/- as elicited in the evidence of PW 2.
28. On perusal of SSLC Marks Card of the deceased, his date of birth is mentioned as 01.06.1984 and the accident having occurred on 26.06.2014 and therefore, the deceased was running 31 years at the time of accident and thereby, the multiplier applicable to the case on hand is 16.
29. In view of the principles liaddown in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration. In the case on hand, the deceased was working as Team Member and getting handsome salary and thus, it can be assumed that the deceased had a bright future. Further, as the deceased was aged 31 years at the time of accident, 50%, from out of his income (Rs.16,675/-), has to be taken as loss of future prospects, which works out to Rs.8,337/- and thus the total (present income plus loss of future prospects) works out to Rs.25,012/-. 13
30. Regarding the deduction to be made towards personal expenses of the deceased, it appears that the deceased was a bachelor. Further, on perusal of the cause title to the petition, it can be seen that petitioner No.1 is the father and petitioner No.2 is the mother and petitioner No.3 is the younger brother of the deceased. Petitioner No.1 and 2 being the parents of the deceased, can be said to be the dependant members on the deceased and the petitioner No.3 cannot be said to a dependant member, since, in the cross-examination of PW 1, he admits that petitioner No.3 is working as a coolie. Therefore, petitioner No.1 and 2 were the only dependants on the income of the deceased. Such being the case, 1/3rd out of the income of the deceased has to be given deduction, as per the principle laid down in the case of Munna Lal Jain and another Vs. Vipin Kumar Sharma and others reported in 2015 AIR SCW 3105, towards the personal expenses of the deceased had he been alive, if that be so, Rs.8,337/- has to be deducted from the total income towards the personal income of the deceased, had he been alive and thus, the total loss of dependency comes to Rs.32,01,600/- (Total income Rs.25,012/- minus 1/3rd ie., Rs.8337/- towards personal expenses, balance comes to Rs.16,675 X 12 = 2,00,100 X 16 = 32,01,600/-)
31. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedabad 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.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, I deem it proper to award 14 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.10,000/- towards cost incurred on account of funeral and ritual expenses.
32. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1 Loss of dependency 32,01,600.00
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 10,000.00
funeral and ritual expenses
Total 33,11,600.00
Minus 25% towards 8,27,900.00
contributory negligence
Balance 24,83,700.00
33. Regarding the liability to pay compensation amount is concerned, the petitioners in the petition averred that the vehicle is owned by respondent No.1 and insured with the second respondent and also gave details of the policy number and validity of the same and the said period covers the date of accident, which is not disputed by the respondent No.2. Thus, the respondent No.1 being the owner and the respondent No.2 being the insurer of the vehicle, are jointly and severally liable to pay compensation to the petitioners.
34. As discussed above, the petitioner No.1 is the father and petitioner No.2 being the mother and petitioner No.3 being the younger brother of the 15 deceased, the compensation amount is apportioned amongst them in the following manner:-
Petitioner No.1 - Father -50% (Out of Rs.32,11,600) Petitioner No.2 - Mother -50%(Out of Rs.32,11,600) Petitioner No.3 - Brother -Rs.1,00,000/-
In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme Court has held that the Court has to take into account the rate of interest of the nationalized bank and the present day cost of living and thereby awarded, interest on the compensation amount at 9% p.a. I have no reasons to deviate from the said view of the Apex Court. Accordingly, interest on compensation amount is awarded at 9% p.a. Accordingly, issue No.3 is answered.
35. Issue No.4: In the result I proceed to pass the following:-
16 ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs.24,83,700/- (being the 75% of total compensation amount of Rs. 33,11,600.00) from the respondents jointly and severally with interest at the rate of 9% per annum from the date of petition till realization. The respondent No.2 shall pay the compensation amount within 3 months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 -Father -50% (Out of Rs.23,83,700/-) Petitioner No.2 - Mother -50% (Out of Rs.23,83,700/-) Petitioner No.3 - Brother - Rs.1,00,000/-
Out of the compensation amount so apportioned in favour of the petitioners No.1 and 2, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in their respective names in any of the nationalized or scheduled bank of their choice for a period of 5 years. Remaining amount with proportionate interest is ordered to be released to them.
Entire compensation amount apportioned in favour of petitioner No.3 with accrued interest is ordered to be released to him.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Judgment Writer, transaction thereof corrected, signed and then pronounced by me in the open court dated this the 23rd September, 2015) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE 17 Witnesses examined on behalf of the petitioners:
P.W.1 : M.K.Hanumanthappa
P.W.2 : Socrates A.,
Witnesses examined on behalf of the respondents :
RW 1 : Madhumat Hegde Documents marked on behalf of the petitioners:
Ex.P.1 FIR
Ex.P-2 Sketch
Ex.P-3 Mahazar
Ex.P-4 PM Report
Ex.P-5 Inquest Report
Ex.P-6 PM Report
Ex.P-7 Charge Sheet
Ex.P-8 Notarised copy of Ration Card
Ex.P-9 Election ID card of 2nd petitioner
Ex.P-10 Original ID Card of deceased
Ex.P-11 SSLC Marks Card of deceased
Ex.P-12 PUC Marks Card of deceased
Ex.P-13 ITI Marks Card of deceased
Ex.P-14 Apprentice Certificate of deceased
Ex.P.15 Bank Statement
Ex.P.16 Salary Slips
Ex.P.17 Bank Pass Book
Ex.P.18 Authorisation letter
Ex.P.19 Copy of ID Card
Ex.P.20 Copy of appointment letter
Ex.P.21 Salary Revised Slips
Ex.P.22 3 Pay slips
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Ex.P.23 Attested copy of Time Card
Documents marked on behalf of the respondent:
Ex.R.1 Policy Copy
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore