Bangalore District Court
Kailash Kamara vs M.N.R. Transport on 23 December, 2024
SCCH-21 1 MVC No.6581/2022
KABC0B0017462022
IN THE COURT OF XVII ADDL. JUDGE, COURT OF SMALL
CAUSES & MEMBER, M.A.C.T,
MAYO HALL UNIT, BENGALURU (SCCH-21)
PRESENT: Sri. Vijaykumar S. Hiremath,
LL.B.,
XVII ADDL. JUDGE, Court of Small
Causes & Member, M.A.C.T., Bengaluru.
Dated this the 23rd Day of December-2024
M.V.C. No.6581/2022
Petitioner/s: 1. Kailash Kamara (Died)
S/o Bhagaban Kamara
Aged about 55 years,
2. Jayanti Kamara
W/o Kailash Kamara,
Aged about 38 years,
3. Papi Kamara
S/o Kailash Kamara,
Aged about 17 years,
4. Sushanta Kamara
S/o Kailash Kamara,
Aged about 09 years,
[Petitioner No.3&4 are minor children
Represented by 2nd petitioner mother
and Natural guardian
Jayanti Kamara.]
All are R/at Sadangi,
Dhenknal, Odisha.
(By Sri. M. Subramani, Adv.,)
Vs.
SCCH-21 2 MVC No.6581/2022
Respondent/s: 1. M.N.R. Transport, Prop. Manjunath,
No.20, Chowdappa Building,
Makali U-turn, Prabhanagara,
Dasanapura Hobli, Tumkur Road,
Bangalore-562162.
[Owner of the Container bearing Reg.No.
KA-52-B-3886]
(By Sri/Smt. K.P.Shivalingaiah, Adv.,)
2. Tata AIG General Insurance Co. ltd.,
No.69, J.P & Devi,
Jambukeshawara Arcade, 3rd floor,
Millers Road, Bangalore-560052.
[Policy No.0147619853
Valid from 31.03.2022 to 30.03.2023]
(By Sri/Smt. Kiran pujar, Adv.,)
Date of institution of the : 29.11.2022
petition
Nature of the Petition : U/Sec.166 of M.V. Act
Date of commencement of : 05.07.2023
recording of the evidence
Date on which the Judgment : 23.12.2024
was pronounced
Duration of the Petition Year/s Month/s Day/s
02 00 24
JUDGMENT
The petitioners have filed this petition under Section 166 of
the Motor Vehicles Act 1989, claiming compensation of
Rs.50,00,000/- from the respondents with regard to the death of
Bapi Kamara S/o Kailash Kamara in the road traffic accident that
took place on 11.11.2022.
SCCH-21 3 MVC No.6581/2022
2. The brief facts of the petition are as follows:
It is the case of the petitioners that, on 11.11.2022 at about
11.00 p.m., the deceased was crossing the outer ring road infront
of Croma Show room, carefully and cautiously by observing all
traffic rules and regulations, at that time one Container bearing
Reg.No.KA-52-B-3886 driven by its driver in a rash and negligent
manner endangering to human life came at high speed from Hebbal
towards K.R.Puram and dashed against the deceased. Due to
forced impact, the deceased fell on road and sustained grievous
injuries on vital parts of the body. Immediately after the accident,
the injured was shifted to North Bangalore Hospital for first aid
treatment and then shifted to Manipal Hospital, Bangalore and
inspite of better treatment he succumbed to accidental injuries at
about 11.50 p.m. Thereafter, the body was shifted to Dr. Ambedkar
Medical College Hospital for post mortem and after conducting post
mortem the petitioners are shifted the dead body to their native
place and performed the last rites and obsequies ceremony and
they have spent more than Rs.75,000/- towards medical and
funeral expenses. On account of the sudden and sad demise of the
deceased in the said accident, the petitioners have undergoing deep
mental shock, pain and suffering and hardship.
Prior to the accident the deceased was hale and healthy and
was aged about 23 years and he was working as a Coolie and he
SCCH-21 4 MVC No.6581/2022
was earning Rs.30,000/- p.m. The petitioner No.1 and 2 are the
parents of the deceased and petitioner No.3 and 4 are the brothers
of the deceased, so the petitioners have lost their family member.
The petitioners were solely depending upon the income of the
deceased. The respondent is the owner cum internal insurer of the
offending vehicle are jointly and severally liable to pay
Rs.50,00,000/- with cost and interest to the petitioners. Hence,
prayed to allow the petition.
3. After the service of notice, both the respondents entered
appearance through their learned counsels and filed their objection
statement separately.
The respondent No.1 in his written statement denied the case
of the petitioners as false and contended that the petition itself is
not maintainable either on facts or law. The respondent further
submitted that the alleged accident has occurred due to the
negligence on the part of the deceased only, the deceased crossed
the road where there is no pedestrian crossing or zebra crossing to
cross the road. Hence, this respondent is not liable to pay the
compensation to the petitioners.
The respondent No.2 in its written statement has admitted
the issuance of policy and liability if any is subjected to the terms
and conditions of the policy. This respondent further contended
SCCH-21 5 MVC No.6581/2022
that, the complaint was lodged unknown vehicle driver and FIR
was lodged with column 8 blank and without any recital of vehicle
or accused, later the jurisdictional police have falsely implicated
the Goods vehicle bearing Reg.No.KA-52-B-3886 and filed the false
case colluding with the owner of the vehicle and the petitioners and
further contended that, the driver of the Goods vehicle bearing
Reg.No.KA-52-B-3886 was not holding valid and effective driving
license as on the date of the accident and thereby the owner of the
vehicle committed breach of terms and conditions of the policy.
Even the jurisdictional policy have filed charge sheet U/sec. 3(1) R/
w 181 and Sec.5(1) R/w 180 of M. V. Act.
Both the respondents have denied the age, income and
occupation of the deceased. It has also denied the amount spent
towards funeral expenses of the deceased and the petitioners
relationship with the deceased. Hence on all these grounds, the
respondents have sought for dismissal of the claim petition.
4. On the basis of above pleadings, my learned predecessor
has framed the following issues:
1) Whether the petitioners prove that on
11.11.2022 at about 11.00 p.m., when the
deceased Bapi Kamara was crossing the
outer ring road in front of Croma
Showroom, Carefully and cautiously by
observing all traffic rules and regulations, at
that time, one Container bearing Reg.No.
KA-52-B-3886 driven by its driver in a rash
and negligent manner, endangering to
SCCH-21 6 MVC No.6581/2022human life, came at high speed from hebbal
towards K.R.Puram and dashed against the
deceased, caused the accident and as a
result, the deceased succumbed to the
injuries as alleged by them?
2. Whether the petitioners are entitled
for compensation? If so, to what amount
and from whom?
3. What order or award?
5. In order order to prove the case of the petitioners, the
petitioner No.2 got examined herself as PW.1 and got marked the
documents at Ex.P.1 to 19, examined the employer of the deceased
as PW.2 and got marked the documents at Ex.P20 and Ex.P21,
examined the P.I of R.T.Nagar Police station as PW.3 and got
marked the documents at Ex.P22 to Ex.P.25 and confronted a
document in his cross examination and the same is marked as
Ex.R.1 and also examined the Software Engineer at Qualcomm as
PW.4 and got marked a document at Ex.P.26 and closed their side.
On the other hand, the respondent No.2 has got examined its
official as RW.1 and got marked Ex.R2.
6. Heard the arguments on both the sides and perused the
material placed on record.
7. My findings on the above issues as under:-
Issue No.1 ... In the affirmative,
Issue No.2 ... Partly in the affirmative,
SCCH-21 7 MVC No.6581/2022
Issue No.3 ... As per final order,
for the following:
:REASONS:
8. ISSUE No.1: The petitioners contended that on 11.11.2022
at about 11.00 p.m. deceased Bapi Kamara S/o Kailash Kamara
met with road traffic accident due to rash and negligent driving of
driver of Container bearing Reg.No. KA-52-B-3886.
9. The petitioner No.1 and 2 are the parents and petitioners
No.3 and 4 are the brothers of deceased Bapi Kamara. The
petitioner No.2 in order to establish their case filed the affidavit in
lieu of chief examination of PW-1 and reiterated the petition
averments and got marked the documents at Exs.P.1 to 19. Ex.P-1
is the FIR , Ex.P.2 is the complaint, Ex.P.3 is the Spot mahazar,
Ex.P.4 is the Sketch, Ex.P.5 is the Vehicle seizer mahazar, Ex.P.6 is
the IMV Report, Ex.P.7 is the postmortem Report, Ex.P.8 is the
Notice U/sec. 133 of M.V. Act, Ex.P.9 is the Reply notice, Ex.P.10 is
the Police intimation, Ex.P.11 is the Death Summary, Ex.P.12 is
the request to issue the IMV Report, Ex.P.13 is the Charge Sheet,
Ex.P.14 is the Aadhar card of deceased, Ex.P.15 to P.18 are the
Aadhar card of petitioners, Ex.P.19 is the employment letter.
10. In order to rebut the case of the petitioners, the
representative of insurance company is examined before this court
SCCH-21 8 MVC No.6581/2022
as RW.1 and got marked 02 documents at Ex.R.1 and Ex.R.2. In
his examination-in-chief he depose that, goods vehicle bearing Reg.
No. KA-52-B-3886 was not at all involved in the accident. The
Jurisdictional police have filed the false case against the goods
vehicle colluding with the owner of the vehicle and claimants.
Further he also depose that, driver of the said vehicle was not
holding valid and effective driving license as on the date of alleged
accident.
11. In decision reported in 2009 ACJ 287 (National
Insurance Co. V/s. Pushpa Ram and others) wherein it was
held that, certified copy of the documents such as FIR, IMV
Report, Spot Mahazar, charge sheet are documents for
sufficient proof to reach the conclusion that, driver was
negligent proceedings under M. V. Act are not akin to
proceeding in a civil suit. Hence, strict rules of evidence
are not required to be followed in this regard.
12. In a claim of compensation under Sec.166 of
M.V.Act, 1988, the claimant has to prove the incident only
on preponderance of probabilities and standard of proof
beyond reasonable doubt is not required as held by Hon’ble
Supreme Court of India in decision reported in 2011 SAR
(CIVIL) 319 Kusum and Others V/s. Satveer and others.
SCCH-21 9 MVC No.6581/2022
13. Further Hon’ble Supreme Court of India in case of
Bimla Devi and others v/s. Himachala Road Transport
Corporation and others (2009) 13 SCC 530, wherein it is
held that, it was necessary to be borne in mind that,
strict proof of an accident caused by a particular bus
in a particular manner may not be possible to be done by
claimants. The claimants were merely to establish their case
on the touchstone of preponderance of probability. The
standard of proof beyond the reasonable doubt could not
have been applied.
14. In this case, the learned counsel for petitioners
argued that, the accident is caused due to rash and nelgigent
driving of the driver of the offending vehicle which resulted in
the death of Bapi Kamara. Further she also argued that
respondent No.2 being the insurer of the offending vehicle is
liable to indemnify the respondent No.1 owner of the
offending vehicle.
15. The learned counsel for the respondent No.1
submitted that, police have falsely implicated the vehicle
bearing No.KA-52-B-3886 and in the complaint it is
mentioned that accident was caused by the unknown vehicle
and police have colluding with the petitioners has filed false
SCCH-21 10 MVC No.6581/2022
charge sheet against this vehicle and further submitted that,
the vehicle in question is not at all involved in the accident
and four wheeler vehicle has caused this accident and prays
to dismiss the petition.
16. On the contrary the learned counsel for the petitioner
submitted that, to prove the accident he has produced the evidence
of PW.4 Ansuman Gourav, who is the star witness of this accident.
The camara fixed in the dashboard of his car (PW.4), captured
entire incident and that is sufficient to show how the accident has
taken place.
17. In the light of above arguments, this court perused the
materials available on record. One person by name A. Mathaiah
has lodged the complaint as per Ex.P.2 against the unknown
vehicle stating that, “on 11/11/2022 at about 11.25 p.m moving
from Hennur towards his office in company vehicle, he saw a
person fell on the middle of the road opposite to Croma Show
Room on outer ring road, he get down from his vehicle and
seen that 3 to 4 people was surrounding him and lifted him
near by metro barricades. At that time we found card
belonging to deceased and found his name Bapi Kamara aged
23 years. Thereafter he shifted him to nearby North
Bangalore Hospital. After enquiring with the public who were
on the spot of accident told to him that on 11-11-2022 at
SCCH-21 11 MVC No.6581/2022
around 11.00 p.m on outer ring road, infront of Croma
Showroom one unknown vehicle driver, drove his vehicle in a
rash and negligent manner from Hebbal to towards K. R.
Puram and hit one pedestrian by name Bapi Kamara, as a
result pedestrian fell down on the road and sustained
injuries to his lower back, spine and abdomen and after the
accident the unknown vehicle ran away from the spot.”
18. So, based upon the said complaint, Banasawadi
Traffic Police filed the FIR on 12-11-2022 at 3.00 p.m. After
investigation police have filed Final Report against the driver
of the offending vehicle and respondent No.1 for the offences
punishable U/Sec.279 and 304(A) IPC and U/Sec. 134(A),
187, 3(1), 181, 5, 180 of M. V. Act. In the charge-sheet it is
noticed that, the accident is caused due to rash and
negligent driving of the offending vehicle bearing Reg. No. KA-
52-B-3886. Further they also mention that, driver of the
offending vehicle drove the said Container without having
valid Driving License. In the light of above first information
and Charge-sheet, this court also perused the Death
Summary issued by North Bangalore Hospital marked at
Ex.P.11, wherein hospital authorities mentioned that,
deceased Bapi Kamara brought to the hospital with alleged
history of RTA and they also mentioned that, while patient
SCCH-21 12 MVC No.6581/2022
was crossing the road hit by 4-wheeler on 11/11/2022
around 11.30 p.m. But on perusal of IMV Report, it reveals
that, alleged vehicle is 6-wheeler vehicle.
19. This court also perused the Ex.P.3 i.e., Spot
Panchanama. As per the contents of the said document, Spot
Panchanama was conducted on 12-11-2022 between 07.00
a.m. and 08.00 a.m. Further also it reveals that, the eye-
witness by name Yalamilli Dinesh Kumar and Sri Sudir
Chandran Raj informed the pancha witnesses that at 11-11-
2022 at 23:00 hours, the driver of Tata Container Canter
vehicle bearing Reg. No. KA-52-B-3886 drove his vehicle in
rash and negligent manner and dashed the pedestrian and
caused the accident. But in hand sketch map, Investigation
Officer has not mentioned the alleged offending vehicle
number. As per Ex.P.5 i.e., vehicle Seizer Panchanama, the
Tata Container Canter vehicle bearing Reg. No. KA-52-B-
3886 was seized on 12-11-2022 between 02.00 p.m and
03.00 p.m.
20. In the light of above documents this Court again
perused the cross-examination of PW.1 to PW.4. PW.1 is not
the eye-witness to the accident. As such, his evidence is not
much important to come to conclusion about the alleged
SCCH-21 13 MVC No.6581/2022
incident. PW.4 is the eye-witness to the incident, he deposed
in his evidence that, on 11-11-2022 he was proceeding from
Yalahanka to Bellandur in his Car, when he reached near
Kalyan Nagar at 11.00 p.m he saw truck moving infront of
his vehicle which ran over a pedestrian. Thereafter, he
parked his Car and informed the police through mobile app.
Further he depose that, in his Car he had dashboard –
camara, so the camara captured the incident and he upload
the same to the twitter and tagged to the Bangalore Traffic
PS. Thereafter, he shared the video to the police. Though
learned counsel for Insurance Company cross-examined at
length but he failed to extract material from the above
witness in his favour.
21. PW.3 is the Investigation Officer, she deposed that,
she was received written complaint on 12-11-2022 at 03.00
a.m. Accordingly she registered the first information report
against the driver of the unknown vehicle. Thereafter she
appointed her subordinates to search the vehicle. Further
she also depose that she received the video clipping from
PW.4. On perusal of video clipping she came to know that,
vehicle involved in the accident belongs to MNR Transport,
but vehicle number is not reflected in the video. Thereafter,
she obtained CCTV footage at Hosakote toll, then only she
SCCH-21 14 MVC No.6581/2022
came to know that, the vehicle involved in the accident
belongs to MNR Transport and its number is KA-52-B-3886.
Accordingly, after investigation she filed the Final Report
against the driver and owner of the offending vehicle.
22. During cross-examination she depose that, she has
visited the Spot between 04.00 a.m and 05.00 a.m on 12-11-
2022. Further she also admits that, she has given requisition
to Hosakote toll gate personnel at 08.00 and 09.00 a.m., on
12-11-2022 requesting them to furnish the CCTV footage.
Further, she also admits that, they have given CCTV footage
to her between 9.30 a.m. and 10.00 a.m. then only she came
to know that, the Canter number is KA-52-B-3886. Further
she also admits that, she has not given any requestion to the
PW.4 to provide video clipping. Further, on perusal of
Ex.P.24 i.e., the statement of Muniyappa, who has given the
CCTV footage at Hosakote Toll. In his statement he stated
that, accident is caused due to rash and negligent driving of
driver of Tata Container Canter bearing Reg. No. KA-52-B-
3886 and requested to take action against him.
23. So, on going through the above oral evidence and
documentary evidence it goes to show that, police have
received the complaint regarding the accident on 12-11-2022
SCCH-21 15 MVC No.6581/2022
at 03.00 a.m., against unknown vehicle. PW.3 Investigating
Officer came to know about the vehicle number at 9.30 a.m.
on the same day. This being so this court unable to
understand how the Investigation officer mentioned the
vehicle number in the Spot Panchanama at Ex.P.3 which was
conducted between 07.00 a.m. and 08.00 a.m. Further on
perusal of MLC Intimation issued by the Baptist North
Bangalore Hospital i.e., Ex.P.10 it goes to show that, accident
is caused by the 4-wheeler vehicle. Apart, the person who
has handed over the CCTV footage at Hosakote Toll gate
given the statement to the Investigating Officer to take action
against the driver of the Tata Container Canter bearing Reg.
No. KA-52-B-3886, but he is not eye-witness to the accident.
His duty is to provide only information and not to take action
against the driver of the vehicle. So, this shows that, he has
given statement wrongly or police have recorded his
statement wrongly. Further, as per the Spot Panchanama
offending vehicle’s number is mentioned which was
conducted between 07.00 a.m and 08.00 a.m but
Investigating Officer in her cross-examination admits that,
she came to know about the number of the offending vehicle
only after 09.30 a.m. But as per the Seizer panchanama Tata
Container Canter is seized between 02.00 p.m and 03.00 p.m
SCCH-21 16 MVC No.6581/2022
on 12-11-2022. So, insurance company successfully created
doubt in the mind of Court regarding the involvement of the
vehicle bearing Reg. No. KA-52-B-3886 in the accident.
However, owner of the vehicle given reply to the notice issued
by the Investigating Officer u/s 133 of M.V Act as per Ex.P.9
stating that, one G. P. Devaprasanna is the driver of his
vehicle on the date of alleged accident. Further in this case,
owner of the vehicle filed written statement where he has
taken contention that, he is not liable to pay any
compensation to the petitioners because the deceased cross
the road where there is no pedestrian crossing or Zebra
crossing. This itself shows that, respondent No.1 colluded
with others in order to cause damage to the Insurance
Company, admits his involvement in the accident. So,
Insurance Company is not liable to indemnify the owner of
the offending vehicle. In this case, respondent No.1 admits
the accident and involvement of his vehicle. But he failed to
prove that driver of his vehicle is not responsible for the
accident and he failed to prove that, accident is caused due
to negligent act of pedestrian i.e., deceased Bapi Kamara. In
similar circumstances, Hon’ble High Court of Karnataka
impose the liability on owner of the vehicle which is reported
in ILR 2009 KAR 3562 between Veerappa and another
SCCH-21 17 MVC No.6581/2022
Vs. Siddappa and another. Hence, having regard to the
above facts and circumstances and decision of Hon’ble High
Court of Karnataka, this court opine that, accident is caused
solely due to negligence of driver of Container bearing
Reg.No.KA-52-B-3886. Hence, I answer Issue No.1 in the
Affirmative.
24. ISSUE No.2: This Issue is regarding dependency,
quantum of compensation to be awarded to petitioners and who is
liable to pay the same, which is answered under the following
heads:
25. LOSS OF DEPENDENCY: To ascertain the actual loss of
dependency, the age, income of deceased and the number of
dependents of the deceased are to be taken into consideration. It is
the contention of the petitioners that they are solely depending
upon the income of the deceased and due to death of Bapi Kamara,
they have lost love and affection of the deceased.
26. The petitioner No.1 and 2 are the parents, petitioner
No.3 and 4 are the brothers of the deceased. As the petitioner No.1
died during the pendency of the case. In the cause title petitioner
No.2 age is shown as 38 years and the age of petitioner No.3 and 4
are shown as 17 and 9 years respectively. The deceased out of his
income contributed to the income of family consisting of himself
SCCH-21 18 MVC No.6581/2022
and petitioners herein. Further, these petitioners being legal
representatives of the deceased can very well maintain petition.
Hence, it is clear that, all the petitioners are depending upon the
income of the deceased Bapi Kamara. Hence, 1/3rd of the income
should be taken towards personal expenses of the deceased.
27. Considering recent judgment passed by the Hon’ble
Supreme Court in Civil Special leave petitioner (Civil
No.25590/2014 dated:31.10.2016 (National Insurance
Company Ltd., Vs. Pranay Sethi & Others), in which it is
observed that, “in case if 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.
An addition of 25% where the deceased was between the age of 40
to 50 years and 10% where the deceased was between the age of 50
to 60 years should be regarded as the necessary method of
computation”.
28. In a decision reported in 2018 ACJ 5 (Hem Raj Vs.
Oriental Insurance Company Ltd., & Others), Wherein the
Hon’ble Apex Court held that, there can not be distinction where
there is evidence of income and where minimum income is
determined on guesswork, as such addition on account of future
prospects is admissible where in the absence of proof of income.
SCCH-21 19 MVC No.6581/2022
29. The petitioners contended that, at the time of accident,
the deceased was aged 23 years and working as Coolie and earning
Rs.30,000/- per month. The petitioners have produced the
postmortem report of deceased Bapi kamara which is marked at
Ex.P.7 From perusal of the Ex.P.7 age of the deceased is mentioned
as 23 Years as on the date of accident. Further as per Aadhar Card
date of birth of the deceased is 07.06.1999, accident is caused on
11.11.2022. Hence, the age of the deceased is considered as 23
years as on the date of accident. The accident took place in the
year 2022. Petitioners have contended that deceased Bapi kamara
was working as Coolie and earning Rs.30,000/- per month. But to
prove the same they have not produced any documents. The
Hon’ble High Court of Karnataka fixed notional income of
the year 2022 at Rs.15,500/- per month for determination
of income before Lok-Adalat for the Districts coming under
the Hon’ble High Court of Karnataka, Bengaluru Bench. So,
in view of fixing of notional income by the Hon’ble High Court of
Karnataka, it is just and proper to the Tribunal to follow the
notional income fixed by the Hon’ble High Court of Karnataka to
decide the cases before the Tribunal also. Case on hand, the
petitioners have not produced any relevant documents to prove
income of the deceased. Accordingly, the notional income of
SCCH-21 20 MVC No.6581/2022
the deceased during the year 2022 treated as Rs.15,500/- per
month fixed by the Hon’ble High Court of Karnataka.
30. As per decision stated above, it is clear that, the Tribunal
has to consider the future prospects on actual salary less tax and
even for self employed or were engaged on fixed wages. Admittedly,
the age of the deceased is 23 years. So 40% of future prospects is
taken into consideration. Taking into consideration of the same, if
40% is added to the income of the deceased it would be
Rs.15,500/- + 40% (Rs.6,200/-) = Rs.21,700/- per month. There
are 3 dependents. Hence, 1/3rd has to be deducted towards
personal expenses. So, 1/3rd of Rs.21,700/- would be Rs.7,233/-.
Income for consideration (Rs.21,700-7,233) is Rs.14,467/- per
month. Therefore the annual income (Rs.14,467 x 12) is
Rs.1,73,604/-. As such correct multiplier as per guidelines of
Sarala Varma case would be “18”. Thus the loss of dependency
works out to (Rs.1,73,604/- x 18) is Rs.31,24,872/-.
31. TOWARDS TRANSPORTATION OF DEAD BODY,
FUNERAL EXPENSES AND LOSS OF ESTATE: The petitioners
have spent the amount towards shifting the dead body and
performing funeral and obsequies ceremony. In this regard, the
Hon’ble Supreme Court judgment passed in Special Leave
petitioner (Civil) No.25590/2014 dated:31-10-2017 (National
SCCH-21 21 MVC No.6581/2022
Insurance Co., Ltd Vs. Pranaya Sethi and Others), wherein it
is held that as far as conventional heads are concerned, the
petitioners are entitled for funeral expenses of Rs.15,000/- and
under the head of loss of estate at Rs.15,000/-.
32. LOSS OF CONSORTIUM: The counsel for petitioners
relied on the judgment of the Hon’ble Supreme Court in Civil
appeal No.9581/2018 (Arising out of SLP(Civil) No.3192/2018)
in case of Muama General Insurance co. Ltd., Vs. Nanu Ram
alias Chuhru Ram and others.
In which it is held in para No.8.7 that:
“A constitution bench of this court in pranay sethi
(supra) dealt with the various heads under which
the compensation it so be awarded in a death case.
One of these heads is “Loss of consortium”.
In legal parlance “consortium” is a compendious
term which encompasses spousal consortium;
parental consortium and filial consortium.
The right to consortium would include the company,
care, help, comfort, guidance, solace and
affection of the deceased, which is a loss to his
family. With respect to a spouse, it would include
sexual relations with the deceased spouse.
Spouse consortium is generally defined as rights
pertaining to the relationship of a husband-wife
which allows compensation to the surviving spouse
for loss of “company”, society, co-operation, affection
and aid of the other in every conjugal relation”.
Parental consortium is granted to the child upon the
premature death of a parent, for loss of “parental aid,
SCCH-21 22 MVC No.6581/2022
protection, affection, society, discipline, guidance and
training”.
Filial consortium is the right of the parents to
compensation in the case of an accidental death of a
child. An accident leading to the death of a child
causes great shock and agony to the parents and
family of the deceased. The greatest agony for a
parent is to lose their child during their lifetime.
Children are valued for their love, affection,
companionship and their oral in the family unit.
Consortium is a special prism reflection changing
norms about the status and worth of actual
relationship. Modern jurisdictional world-over have
recognized that the value further on perusal of
child’s consortium far exceeds the economic value of
the compensation awarded in case of death of a child.
Most jurisdictions therefore permit parents to be
awarded compensation under loss of consortium on
the death of a child. The amount awarded to the
parents is a compensating for loss of love, affection,
care and companionship of the deceased child.
33. The petitioner No.2 is the mother of the deceased, thus
she is entitled for consortium for loss of “protection, affection,
society, discipline, guidance and training”. Therefore, Rs.40,000/-
is awarded to the petitioners No.2 under the head of loss of
consortium.
34. Considering the above facts and for the above reasons,
the petitioners are entitled for compensation under the following
heads:
1 Loss of dependency Rs.31,24,872/-
2 Loss of consortium Rs. 40,000/-
3 Towards transportation of dead Rs. 15,000/-
SCCH-21 23 MVC No.6581/2022
body and funeral expenses
4 Loss of estate Rs. 15,000/-
Total Rs.31,94,872/-
Hence, this Tribunal feels to award just and proper
compensation of Rs.31,94,872/- to the petitioners.
35. LIABILITY: In this case as discussed in Issue No.1,
owner of the offending vehicle colluded with the others admits
about the involvement of his vehicle in the accident. As such,
Insurance Company is not liable to pay compensation.
Learned counsel for the petitioners vehemently argued that
the policy was in-force, the insurance company cannot avoid the
liability and further submitted that the insurance company is liable
to pay the compensation even presuming that the driver of the
offending vehicle bearing Reg.No.KA-52-B-3886 is not possessing
the Driving License.
Per contra, the learned counsel for respondent No.2
vehemently submitted that, the driver of the offending vehicle was
not holding the Driving License as on the date of accident, thereby
owner of the Container bearing Reg. No. KA-52-B-3886 violated the
terms and conditions of the policy. Hence, insurance company is
not liable to pay the compensation as claimed.
No doubt, the Hon’ble Supreme court held that, in case of
not having Driving License then the insurance company has to pay
SCCH-21 24 MVC No.6581/2022
the compensation and then recover it from the owner of the vehicle.
But the judgment of the Apex court in Beli Ram Vs. Rajinder
Kumar and Another [AIR 2020 SC 4453] wherein the Apex Court
observed as under:-
“Motor Vehicles Act (59 of 198), S.149 (2)(ao(ii),
S.15 – Insurer’s liability – Non-renewal of driving
licence – Respondent – Claimant employed as driver
met with accident while driving truck owned by
employer – License not renewed for period of three
years and that too in respect of commercial vehicle like
truck – employer cannot wash his hands off
responsibility of not checking up whether the driver
has renewed license – Gross negligence on part of
employees as insured in verifying driving license,
Insurance Company not liable to pay compensation.”
U/sec 3 of M.V Act and also meaning and definition of
‘Effective driving licence’ viz a viz section 3, 4 and 5 of M.V Act,
whereby the insurance company has done all its efforts in
establishing the fact that there was a fundamental breach of policy
condition. If a person drives the vehicle without a driving license or
the owner allows the person to drive the vehicle without driving
license there is a breach of section 3 of M. V Act which would no
doubt make the owner liable for the consequences as per the M.V
act and as per the section 181 of M. V Act.
36. In this case, petitioner has not proved that the driver of the
car was having driving license at the time of accident. Therefore,
SCCH-21 25 MVC No.6581/2022
the court has opinion that the driver of the car was not having
driving license at the time of accident. There is fundamental breach
of terms and conditions of the policy. Therefore, judgment in MFA
No. 22781/2012 C/w MFA No. 22539/2012 (MV) in a case The
Divisional Manager, Reliance General Insurance Co. Ltd., Vs.
Shri Arjun Datatray Gurav and another, wherein it is held that
when there is fundamental breach of the policy condition the
legibility fix on the insurance company. Therefore, this being the
violation of the policy conditions while considering the liability.
37. Further this court has relied upon the judgment of Hon’ble
Supreme court of India 2022 LiveLaw (SC) 932 in a case of Balu
Krishna Chavan Vs. The Reliance General Insurance Company
Ltd. & others wherein held that if the liability of the insurance
company is decided and they are held not to the liable, ordinarily,
there shall be no direction to “pay and recover”,
Further in para No.8 held that hence, the
only aspect for out consideration herein, is as to
whether in the facts and circumstances of the
present case, an order to direct the Insurance
Company to “pay and recover”, is required to be
made. On this aspect, the law is well settled that
if the liability of the Insurance Company is
decided and they are held not to be liable,
ordinarily, there shall be no direction to “pay
and recover”. However, in the facts and
SCCH-21 26 MVC No.6581/2022
circumstances arising in each case, appropriate
orders are required to be made by this court to
meet the ends of justice. (emphasis supplied).
Therefore, in view of the above dictum of the hon’ble Supreme
court of India the principal of pay and recovery cannot be applies in
the present case. Therefore, under such circumstances, it is the
owner respondent No.1 is held liable to pay the compensation as
awarded by the tribunal. The liability of the insurance company is
hereby exonerated from the liability.
38. INTEREST: As far as awarding of interest on the
compensation amount is concerned, I have relied In a decision in
M.F.A. No.100090 of 2014 in between Vijay Ishwar Jadhav and
others V/s The divisional Manager, Bajaj Allianz General
Insurance Co.Ltd 2018 ACJ 5 (Hem Raj Vs. Oriental Insurance
Company Ltd., & Others), wherein the Hon’ble High Court of
Karnataka has awarded interest at the rate of 6%. Accordingly,
ISSUE No.2 is answered partly in the affirmative.
39. ISSUE NO.3: In view of above discussion and findings, I
proceed to pass the following:
ORDER
The petition filed by the Petitioners under
Sec.166 of I. M. V Act is hereby partly allowed with
costs.
SCCH-21 27 MVC No.6581/2022
The petitioner is awarded with compensation of
Rs.31,94,872/- with interest @ 6% p.a., from
the date of petition till its realization.
The respondent No.1 being owner of the vehicle
involved in an accident is personally liable to pay
the compensation to the petitioner. It is the
respondent No.1 is directed to deposit the above
compensation amount with interest thereon before
Tribunal within two months from the date of this
award.
The liability of the respondent No.2 insurance
company to pay the compensation to the petitioner
is hereby exonerated.
After deposit of compensation amount, 60%
share is apportioned in favour of the petitioner No.2
and 20% each is apportioned in favour of the
petitioner No.3 and 4 respectively.
Out of the compensation amount awarded to
petitioner No.2 50% shall be deposited as FD in
their names in any nationalized or schedule bank
for a period of three years and remaining 50%
balance amount with accrued interest shall be
released to the petitioner No.2 on proper
identification.
Out of the companionship amount awarded to
minor petitioner No.3 and 4 shall be deposited as FD
in their names in any nationalized or scheduled
bank for a period of 03 years or till they attain the
age of majority on proper identification.
SCCH-21 28 MVC No.6581/2022
After deposit of compensation amount with
interest thereon, disburse amount as mentioned
above as per guidelines laid down by Hon’ble High
Court in MFA No.2509/2019 (ECA) and as per
General Circular No. 2/2019 dated 19.8.2019.
The petitioners are hereby directed to produce
particulars of their Bank Account, with name of
Bank, IFSC Code, Account Number with copy of
First Page of Bank Pass Book which contains
compulsorily photograph of petitioners, which is
duly attested by concerned Bank. Further
petitioners shall produce PAN Card/Aadhaar Card.
In case of deposit of awarded amount with
interest, the petitioners are entitled to receive
amount as mentioned above after expiry of period
provided for filing an appeal.
Bank shall not advance loan on such FD, and
shall not cause premature release of FD without
permission by the Tribunal.
Advocate’s fee is fixed at Rs.1,000/-
Draw award accordingly.
(Dictated to the Stenographer directly on computer and then corrected by me and
pronounced in the open court on this the 23rd day of December, 2024)(VIJAYKUMAR S. HIREMATH)
XVII Addl. Judge, Court of Small Causes &
Member MACT, Mayo Hall Unit,
Bengaluru.
SCCH-21 29 MVC No.6581/2022
ANNEXURES
Witnesses examined on behalf of the petitioners:
PW.1 : Sri. Jayanti Kamara PW.2 : Sri. Dinesh Kumar Dash PW.3 : Smt. Sheela K. N PW.4 : Anshuman Gourav
Documents marked on behalf of the petitioners:
Ex.P.1 FIR Ex.P.2 Complaint Ex.P.3 Spot Mahazar Ex.P.4 Sketch Ex.P.5 Vehicle Seizer Mahazar Ex.P.6 IMV Report Ex.P.7 Postmortem Report Ex.P.8 Notice u/s 133 of M.V. Act Ex.P.9 Reply Notice Ex.P.10 Police Intimation Ex.P.11 Death Summary Ex.P.12 Request letter to inspect the vehicle Ex.P.13 Charge-sheet Ex.P.14 Notarized copy of aadhar card of deceased
Ex.P.15 to 18 Notarized copy of aadhar cards of petitioners
Ex.P.19 Certificate of employer of deceased
Ex.P.20 Notarized copy of Aadhar card
Ex.P.21 Copy of work order
Ex.P.22 Pen-drive
Ex.P.23 Certificate u/s 65(B) of Indian Evidence Act
Ex.P.24 C/c of statement of Muniyappa
Ex.P.25 Certificate u/s 65(B) of Indian Evidence Act
Ex.P.26 Notarized copy of Aadhar card
SCCH-21 30 MVC No.6581/2022Witnesses examined on behalf of the respondents:
RW.1 : Gireesha. M
Documents marked on behalf of the respondents:
Ex.R1 : Alcohol test Report
Ex.R2 : Copy of Policy
(VIJAYKUMAR S. HIREMATH)
XVII Addl. Judge, Court of Small Causes &
Member MACT, Mayo Hall Unit,
Bengaluru.
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