Bangalore District Court
Smt.Ningamma vs Dilip Kumar on 11 December, 2020
1 SCCH-1
MVC No.3227/2018
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES,
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 11th DAY OF DECEMBER'2020
PRESENT : SMT. S. MAHALAXMI NERALE, B.A., L.L.B.(Hons.), L.L.M.,
MEMBER, PRL. M.A.C.T.
M.V.C. NO.3227/2018
PETITIONERS 1. SMT.NINGAMMA,
W/o.Late Bheemalingappa,
Aged about 53 years,
2. KUM.T.NAVARATHNA,
Daughter of Bheemalingappa,
Aged about 30 years,
Both are residing at No.1254,
Mathru Nilaya, OPH Road,
New Extension, Kadugodi,
Bengaluru
Permanent resident of No.40,
Janatha Oni, Ibrahimpura Village,
Ballari Taluk and District.
(Petitioners are represented by Sri
Kotrabasappa G., Advocate)
Vs
Respondents: 1.DILIP KUMAR,
S/o.Bideshiga Rai,
Aged about 32 years,
Driver of the Cement Mixture Lorry
bearing No.TN.21/J.9754,
R/o.Simariya Village,
Jammu Post, Kodemer District,
Jharkhand State.
2 SCCH-1
MVC No.3227/2018
2. SRI D.RANJITH BABU,
Son of Dorai Raj,
Aged about 40 years,
Owner of the Cement Mixture lorry
bearing No.TN.21/J.9754,
Resident of No.24/3, 2nd Floor,
New Binnamangala,
Old Madras Road,
Indira Nagara, Bengaluru 560 038.
3.THE BRANCH MANAGER,
M/s.Reliance General Insurance
Company Ltd.,
Bengaluru bearing Policy
No.1201272343000348,
valid from 22.02.2017 to 21.02.2018,
5th Floor, East Wing, Centenary Building,
M.G.Road, Bengaluru 560 001.
(Respondent No.1 and 2 by
B.M.Associates, Advocates
Respondent No.3 by Sri H.K.Ramamurthy,
Advocate, Advocate)
*******
JUDGMENT
Invoking the provision of Section 166 of the Motor Vehicles Act, 1988, the petitioners have filed the instant petition seeking compensation of Rs.88 lakhs for the death of T.Rajashekar in the road traffic accident, which is said to have occurred on 16.12.2017 at about 08.20 pm., opposite to BSNL Office, Kadugodi - Hoskote Road, Bengaluru.
3 SCCH-1 MVC No.3227/2018
2. The brief facts of the case are that:-
On 16.12.2017, at about 08.20 pm., the deceased was proceeding on his motorcycle NoKA.53/EU.2844 on Kadugodi - Hosakote Road and when he was proceeding in front of BSNL Office on the said road slowly and cautiously, at that time, one cement mixer lorry No.TN.21/J.9754 driven by the first respondent in high speed and in rash and negligent manner came in the same direction and dashed against the motorcycle of the deceased. Due to the terrible impact, the deceased fell down on the road along with his motorcycle and sustained severe injuries to his head and other parts of the body.
3. Immediately after the accident, the injured Rajashekar, though was shifted to Columbia Asia Hospita, but , he succumbed to the injuries while taking treatment in the said Hospital and thereafter, the body was shifted to Vaidehi Hospital, wherein post mortem was conducted and the body was handed over to the petitioners, who inturn performed the cremation of the deceased. The petitioners have spent over Rs.1 lakh towards medical, transportation, funeral and other expenses.
4. It is contended that the petitioner No.1 is the mother and the petitioner No.2 is the sister of the deceased and and that at the time of the accident, the deceased Rajashekar was aged about 28 4 SCCH-1 MVC No.3227/2018 years and was working as an Operator in Rajamane Industries Pvt., Ltd., Bengaluru and getting a monthly salary of Rs.15,000/- and above and Rs.200/- per day towards TA, DA and other allowances. The petitioners were entirely depending upon the earnings of the deceased and due to his sudden demise in the accident they have been put to lot of mental agony and untold misery.
5. It is contended that the 1 st respondent being the driver, 2 nd respondent being the owner and 3rd respondent being the Insurer of the cement mixture lorry, are jointly and severally liable to pay the compensation.
6. In response to the Court notices issued on the claim petition, all the respondents have entered appearance through their respective counsel and have filed their Statement of Objections.
7. The 1st respondent/driver and the 2nd respondent/owner of the cement mixture lorry, in their statement of objections have contended that the petition is not maintainable either in law or on facts and hence, it deserves to be dismissed in limine. The respondents No.1 and 2 are not aware of the details furnished in column No.1 to 6, 8, 9 and 11 to 21 and 22(a) to (e) of the petition and the petitioners are put to strict proof of the same. It is admitted that the 1st respondent is the driver, 2nd respondent is the owner and the 3rd respondent is the insurer of the cement mixture lorry 5 SCCH-1 MVC No.3227/2018 No.TN.21/J.9754 and denied that the 1 st respondent has driven the lorry in a high speed and in a rash and negligent manner without following the traffic rules and dashed against the deceased. The other averments in the petition regarding the injured having suffered injuries to his head and others parts of the body, having succumbed to the injuries while undergoing treatment, the petitioners having incurred huge expenses for medical treatment, transportation, funeral and other purposes are denied as false. They have also denied the avocation and income of the deceased and have put the petitioners to strict proof of the same. They have contended that the amount of compensation claimed by the petitioners is exorbitant and without any basis. The lorry is insured with the respondent No.3 and the respondent No.1 holds valid and effective driving licence and accordingly, the respondent No.1 are not liable to pay any compensation to the petitioners and accordingly, the respondent No.1 and 2 have prayed to reject the petition.
8. The respondent No.3, in its statement of objections has contended that the amount of compensation claimed by the petitioners is highly exorbitant and without any basis. It is contended that the petition is not maintainable either in law or on facts and hence, it is liable to be dismissed in limine and has denied 6 SCCH-1 MVC No.3227/2018 the age, avocation and income of the deceased. Further, it has contended that, the lorry No.TN.21/J.9754 was covered at the material point of time under the policy of insurance but its liability if any is subject to the terms and conditions of the policy. It is further contended that the respondent No.1 was not holding valid and effective driving licence at the time of the accident and the respondent No.2, by handing over the possession of the vehicle to a person who did not possession valid and effective driving licence, has violated the terms and conditions of the policy and hence, it is not liable to indemnify the respondent No.2. It is further contended that, the respondent No.2 has failed to comply with the provisions of Section 134(c) and the jurisdictional Police have failed to follow the procedure mandated under Section 158(6) of the MV Act. Without prejudice to the contentions taken, it is contended that the accident in question has solely occurred due to the negligence on the part of the deceased himself, as the deceased was riding the motorcycle without wearing any headgear and without taking proper care and caused the accident and has prayed to dismiss the petition.
9. Based on the pleadings the following Issues have been framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a 7 SCCH-1 MVC No.3227/2018 Motor Vehicle Accident that occurred on 16.12.2017 at about 08.20 pm., on Kadugodi Hoskote Main Road opposite BSNL Office, Bengaluru within the jurisdiction of White Field Traffic Police Station on account of rash and negligent driving of the Cement Mixture Lorry bearing registration No.TN.21/J.9754 by its driver?
2) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3) What order?
Additional Issue:
1) Whether the respondent No.3 proves that the accident has occurred on account of negligent act of the deceased himself?
10. The petitioners in order to prove their case, have examined the 1st petitioner as PW1. They have also examined PW 2 and 3 and have got marked 24 documents at Ex.P1 to 24. The respondent No.3 has examined its Legal Manager as RW 1 and has got marked the Insurance Policy at Ex.R.1.
11. Heard the arguments of the learned Counsel for the petitioners, as also the learned Counsel for the respondents and 8 SCCH-1 MVC No.3227/2018 also perused the records.
12. On the basis of the arguments addressed, the pleadings and the evidence available on record, my findings on the above Issues are as under:-
Issue No.1: In the affirmative Addl.Issue No.1: In the negative Issue No.2: Partly in the affirmative Issue No.3: As per final order, for the following:-
REASONS
13. Issue No.1 and Addl.Issue No.1:- These two issues are taken up together for discussion in order to avoid repetition of the facts and evidence as both the Issues pertain to the fact of negligence.
14. It is the case of the petitioners that on account of the rash and negligent driving of the lorry bearing No.TN.21/J.9754 by its driver i.e., by the respondent No.1, the deceased who was riding the motorcycle No.KA.53/EU.2844 met with an accident and succumbed to the injuries that he had sustained in the accident.
15. On the other hand, the respondent No.1 and 2, the driver and owner of the lorry, have not denied the occurrence of the 9 SCCH-1 MVC No.3227/2018 accident but the respondent No.3, the Insurer of the lorry, has contended that the alleged accident has taken place due to the careless and negligent riding of the motorcycle by the deceased himself.
16. The petitioners in order to prove their case have examined the 1st petitioner as PW1 and she has filed her affidavit evidence in lieu of her examination-in-chief reiterating the averments of the petition and produced the FIR and Complaint at Ex.P.1, Spot Mahazar and Spot Sketch at Ex.P.2 and 3, IMV Report at Ex.P.5 and the Charge Sheet at Ex.P.4.
17. On perusal of the FIR and Complaint produced at Ex.P.1, it is seen that the complaint has been lodged by the White Field Station Police Constable by name Kiran Kumar, on the same day of the accident at 09.15 pm, alleging rash and negligent driving of the Cement Mixer Lorry No.TN.21/J.9754 by its driver. The Spot Mahazar and Spot Sketch discloses that the deceased and the lorry were proceeding in the same direction. The IMV Report issued by the Motor Vehicles Inspector after inspection of both the vehicles discloses that the motorcycle of the deceased had sustained damage but no fresh damage were said to be found on the lorry at the time of inspection. It is relevant to note that the respondent No.1 and 2, who are the driver and owner of the lorry, have not 10 SCCH-1 MVC No.3227/2018 denied the occurrence of the accident and they have also not cross- examined PW 1 and the driver has also not stepped into the witness box for reasons best known to him and the respondent No.3 has also not examined any independent eye witness even though the application filed by it U/Sec.170 of MV Act has been allowed. The petitioners have produced the Inquest Mahazar and P.M. Report. At Ex.P.5 and at Ex.P.7. The PM Report discloses the cause for death of the deceased is due to head injury sustained. Therefore, the petitioners through oral and documentary evidence have proved that the accident has occurred due to the rash and negligent driving of the lorry by its driver and the deceased died on account of the injuries sustained by him in the accident. Hence, Issue No.1 is answered in the affirmative and Addl. Issue No.1 in the negative.
18. Issue No.2:- It is the case of the petitioners that the first petitioner is the mother and the petitioner No.2 is the unmarried sister of the deceased. In order to substantiate their case, PW-1 has produced the notarized copy of her Aadhaar Card at Ex.P.10, Election ID card of the petitioner No.2 at Ex.P.11 and the Geneological Tree of their family at Ex.P.12. These documents prove the inter-se relationship of the deceased with the petitioners. Therefore, the relationship between the deceased and the petitioners stands proved.
11 SCCH-1 MVC No.3227/2018
19. To prove the age of the deceased, the petitioners have produced the Driving Licence of the deceased at Ex.P.13. This document shows the date of birth of the deceased as 01.01.1991. The accident has occurred on 16.12.2017. Therefore, it is clear that the deceased was aged 27 years at the time of the accident.
20. In so far as the avocation and income of the deceased that he was working as an Operator in Rajamane Industries Pvt., Limited, Bengaluru and was getting a monthly salary of Rs.15,000/- and Rs.200/- per day towards TA & DA, the petitioners through PW 1 have produced the Marks Card for Apprentices at Ex.P.17, which shows that the deceased had completed Electrician Trade under National Apprenticeship Training Scheme in the year 2012. The petitioners have also produced the Service Certificate of the deceased at Ex.P.15, Salary Slips for the months of April and December'2017 at Ex.P.16, the notarized copy of the Bank Pass Book of the deceased at Ex.P.14.
21. The petitioners have also examined PW 2 one Venkata Ramana, who works as Machine Operator in Rajamane Industries Pvt., Ltd., and one Agila, HR Manager of Rajamane Industries Pvt., Ltd., as PW 3. The evidence of PW 2 reveals that he is only a Machine Operator in Rajamane Industries Pvt., Ltd., and he has not been authorised by Rajamane Industries Pvt., Ltd., to depose and 12 SCCH-1 MVC No.3227/2018 therefore, his evidence is not helpful.
22. The evidence of PW 3, on the other hand, who has been authorised by Rajamane Industries Pvt., Ltd., to produce documents and give evidence, discloses that the deceased was working as an Operator in Rajamane Industries Pvt., Ltd., from 2011 and it is also evidenced by the Service Certificate issued by PW 3 as per Ex.P.21. The Pay Slips for the months of April and December'2017 produced by PW 1 at Ex.P.16 discloses that the deceased had received salary of Rs.18,741/- in the month of April'2017 and Rs.8,500/- in the month of December'2017, in which month, the deceased had died in the accident (Date of accident 16.12.2017). In the month of October'2017, the deceased had received salary of Rs.15,772/- and in the month of November'2017 he had received salary of Rs.13,718/-. The salary received by the deceased in the month of October and November'2017 finds mention in the Bank Pass Book of the deceased produced at Ex.P.14. The Bank Pass Book also discloses that in the month of October'2017, there is a credit of Rs.13,151/- on 09.10.2017, which is probably the salary of the month of September'2017. Hence, the average of 3 months salary for the months of September, October and November'2017 is taken into consideration to arrive at the monthly income of the deceased. If that be so, the total salary for the months of September, October 13 SCCH-1 MVC No.3227/2018 and November'2017 comes to Rs.42,641/- (Rs.13151 + 15772 + 13718) and if the same is divided by 3, it comes to Rs.14,213/- per month and annually, it comes to Rs.1,70,556/-, which does not fall within the income tax net.
23. In so far as addition of income towards loss of future prospects, the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Ors. reported in 2017 ACJ 2700(SC) has held, " In case, the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years, the established income means the income minus the tax component".
24. In the case on hand, the deceased was below the age of 40 years and on fixed salary. Therefore, 40% of Rs.14,213/- would be Rs.5,685/- and the said amount has to be added towards loss of future prospects. When so added, the total income comes to Rs.19,898/- (Rs.14,213 + 5685). The deceased was a bachelor. Therefore, 50% of the income of the deceased has to be deducted towards the personal expenses of the deceased, had he been alive. Therefore, 50% of Rs.19,898/- works out to Rs.9,949/- per month and annually, it works out to Rs.1,19,388/-. As on the date of the accident, the deceased was aged 27 years and the proper multiplier 14 SCCH-1 MVC No.3227/2018 applicable is 17 and if the annual income is mutliplied by 17 multiplier, the same works out to Rs.20,29,596/- (1,19,388 X 17) to which the petitioners are entitled to under the head loss of dependency. Hence, I award a sum of Rs. 20,29,596/- towards loss of dependency.
25. Though the petitioners have contended that they have spent huge amount for transportation of dead body and towards funeral expenses, the petitioners have failed to prove the same by producing any acceptable evidence. The Hon'ble Apex Court in Pranay Sethi's case referred supra has held that reasonable figures on conventional heads, namely loss of estate and funeral expenses should be Rs.15,000/- and Rs.15,000/- respectively. Hence, in the case on hand, I award Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
26. As per the law laid down in the case of Magma General Inurance Co., Ltd., Vs. Nanu Ram Alias Chuhru Ram and Ors., in Civil Appeal No.9581 of 2018 (Arising out of SLP (Civil) No.3192 of 2018) (18.09.2018), the Hon'ble Apex Court has held that "Filial Consortium" is awarded to parents who lose their child. As such, the petitioner No.1 is awarded Rs.40,000/- towards loss of filial consortium. The petitioner No.2 is the unmarried sister of the deceased. Therefore, she is also awarded Rs.40,000/- towards loss 15 SCCH-1 MVC No.3227/2018 of love and affection of the deceased.
27. The details of compensation to which the petitioners are entitled is as under:
Sl.No Head of Compensation Amount/Rs
1. Loss of dependency 20,29,596.40
2. Loss of estate 15,000.00
3. Funeral and ritual 15,000.00
expenses
4. Loss of Filial 40,000.00
Consortium to petitioners
No.1
5. Loss of love and 40,000.00
affection to petitioner
No.2
Total 21,39,596.00
Rounded off to Rs.21,40,000.00
28. Thus, the petitioners are awarded a total compensation amount of Rs.21,40,000/-.
29. In so far as awarding of interest on the compensation amount is concerned, in MFA No.103557/2016 (Sriram General Ins. Co. Ltd Vs Smt. Lakshmi & others) (DD.20-03-2018) the Hon'ble High Court of Karnataka has held that as per Sec. 34 of CPC, the rate of interest that can be awarded on judgments cannot be more than 6% and that since Sec. 149 of the Motor Vehicles Act provides for 16 SCCH-1 MVC No.3227/2018 interest on judgments, the interest to be awarded in claim petitions has to be 6% per annum and not more than that. Hence, in the case on hand, interest at the rate of 6% per annum is awarded.
30. As regards the liability is concerned, the respondent No.1 is the driver, respondent No.2 is the Owner and the respondent No.3 is the Insurer of the lorry No.TN.21/J.97549 which has caused the accident. The respondent No.3 has taken the contention that as on the date of the accident, the lorry was being plied without permit and in this regard, the respondent No.3 has examined its Legal Manager as RW 1 and in the affidavit evidence filed in lieu of her examination in chief, RW 1 has reiterated the contention that as on the date of the accident. the insured vehicle No.TN.21/J.9754 was being plied without permit, as the permit was valid from 19.12.2017 to 18.12.2020 and the alleged accident has taken place on 16.12.2017 and as such, it is not liable to indemnify the respondent No.2, who is the insured. In the cross-examination by the learned counsel for the petitioners, RW 1 has admitted that as on the date of the accident, the Policy was valid, but stated that there was no permit.
31. It is relevant to note that in response to the Notice taken on 25.02.2020 by the respondent No.3 to the respondent No.1 and 2 under Order XII Rule 8 read with 151 of the CPC, the respondent 17 SCCH-1 MVC No.3227/2018 No.1 and 2 on 12.11.2020 have produced the copies of the RC Smart Card and the Goods Carriage Permit in Form KMV 45. On perusal of the said permit, it reveals that the said permit is valid from 19.12.2017 to 18.12.2020. The accident has occurred on 16.12.2017. So, it is clear that the permit has been taken subsequent to the accident and that as on the date of accident, there was no permit for the Concrete mixer Lorry No.TN.21/J.9754, which has caused the accident to the deceased.
32. At this juncture, it is relevant to refer to the decision of the Hon'ble Apex Court in the case of Amrit Paul Singh and another Vs TATA AIG General Insurance Co., Ltd., ( Civil Appeal No.2253/2018 - DD 17.03.2018). The Hon'ble Apex Court has held that if, as on the date of the accident, the vehicle did not have permit, then direction can be issued to the Insurer to pay the compensation amount to the claimants and recover the same from the owner and the driver in consonance with the principles stated in National Insurance Co., Ltd., Vs Swaran Singh and others ( 2004(3) SCC 297).
33. In the case on hand, as on the date of the accident, since the offending vehicle ie., Concrete mixer lorry No.TN.21/J.9754 did not have permit as on the date of accident. The principles of pay and recover as laid down in Amrit Paul Singh's case, referred supra, 18 SCCH-1 MVC No.3227/2018 is squarely applicable to the case on hand and as such, the 3 rd respondent shall satisfy the award and recover the same from the respondent No.1 and 2, being the driver and owner of the lorry. Accordingly, Issue No.2 is answered partly in the affirmative.
34. Issue No.3:- In view of the discussions made above, I proceed to pass the following: -
ORDER The petition filed by the petitioners is allowed in part. The petitioners are entitled for compensation of Rs.21,40,000/- with interest at the rate of 6% per annum from the date of petition till realisation.
The Insurance Company - the respondent No.3 shall pay the compensation amount to the petitioners with interest within 2 months from the date of this order and recover the same from the respondent No.1 and 2 by initiating appropriate proceedings against him.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Mother - 50% Petitioner No.2 - Sister - 50% Out of the compensation amount so apportioned in favour of the petitioner No.1 and 2, 50% with proportionate interest is 19 SCCH-1 MVC No.3227/2018 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. Interest on FD is payable on maturity.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the Open Court on this the 11th Day of December'2020) ( S. MAHALAXMI NERALE) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Ningamma PW 2 : Venkataramanappa B.H., PW 3 : Agila S.,
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR & Complaint
Ex.P-2 : Spot Mahazar
Ex.P-3 : Copy of Sketch
Ex.P-4: Charge Sheet
Ex.P-5: Inquest Mahazar
20 SCCH-1
MVC No.3227/2018
Ex.P-6: IMV Report
Ex.P.7: PM Report
Ex.P-8: Section 133 Notice
Ex.P.9: Reply to Section 133 Notice
Ex.P.10: Aadhaar Card
Ex.P.11: Election ID Card
Ex.P.12: Geneological Tree
Ex.P.13: Driving Licence
Ex.P.14: Bank Pass Book
Ex.P.15: Service Certificate
Ex.P.16: Salary Slips
Ex.P.17: ITI Marks Card
Ex.P.18: Authorisation Letter
Ex.P.19: Aadhaar Card
Ex.P.20: Authorisation Letter
Ex.P.21: Service Certificate
Ex.P.22: Pay Slips
Ex.P.23: ID Card
Ex.P.24: Pay Slips
Witnesses examined on behalf of the respondents RW 1 : G.Jayashree Documents marked on behalf of the respondents:
Ex.R.1:Policy Copy ( S. MAHALAXMI NERALE) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.