1 MVOP.15 OF 2009
IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENTS CLAIMS
TRIBUNAL - cum - II ADDL. DISTRICT JUDGE, KARIMNAGAR ::AT::
JAGTIAL.
PRESENT:- SRI P.RANJAN KUMAR,
Chairman MACT–cum-II- Additional District Judge, Karimnagar at JAGTIAL.
WEDNESDAY, THE 16th DAY OF AUGUST, 2017.
M.V.O.P.NO.15 OF 2009.
Between:
1. Bandari Madhavi, W/o.Late Jagan Rao, Age: 35 years, Household, R/o.Ramannapet (V) of Mallial Mandal, Dist: Karimnagar.
2. Bandari Nikhitha D/o.Late Jagan Rao, Age: 16 years, student, (Minor) represented her mother and natural guardian Smt.Bandari Madhavi i.e. petitioner No.1 herein.
3. Bandari Sai Ashish, S/o.Late Jagan Rao, Age: 13 years, Student, (Minor) represented his mother and natural guardian Smt. Bandari Madhavi i.e. Petitioner No.1 herein.
4. Bandari Chandramma, W/o.Late Hanmantha Rao, Age: 70 years, Household, R/o.Ramannapet (V) of Mallial Mandal, Dist: Karimnagar. …Petitioners. AND
1. Imtiaz Ahmed, S/o.Shaik Ahmed, Age: 50 years, Driver Bus bearing No.AIF-1544, R/o.Mahaboobpura, Jagtial proper and mandal, Dist: Karimnagar.
2. A.Vidyasagar Goud, S/o.Gangaram, Age: 45 years, Owner of Private bus bearing No.AIF-1544, H.No.7-6-55, Vidyanagar, Jagtial dist: Karimnagar. (Died).
3. The Oriental Insurance Co. Ltd., Synerge Insurance Ltd., Mumbai - 13 vide policy cover note No.131712 valid from 17.02.2006 to 16.02.2007.
4. The Oriental Insurance Co. Ltd., Opp: Collector Complex, Karimnagar.
5. A.Vijaya, W/o.Late Vidyasagar Goud, Age: 43 years, Household, H.No.7-6-55, Vidyanagar, Jagtial proper and mandal, Dist: Karimnagar.
6. Yerukonda Saritha, W/o.Chandra Shekar, Age: 28 years, Household, R/o.H.No.7-6-55, Vidyanagar, Jagtial proper and mandal, Dist: Karimnagar.
7. A.Samrat S/o.Late Vidyasagar Goud, Age: 25 years, H.No.7-6-55, Vidyanagar, Jagtial proper and mandal, Dist: Karimnagar. (The Respondentws 5 to 7 were brought on record as LRs of Respondent No.2 as per the orders made in I.A.No.____ of 2012, dt._________2012).
8. The New India Assurance Company Limited, (Nagpur R.O.), Dist: Nagpur of Maharastra State.
9. The Divisional Manager, New India Assurance Company Ltd., Podduturi Complex, 2nd floor, Hanmakonda Main Road, Warangal. (The Respondents 8 & 9 were impleaded as per the orders made in I.A.12246 of 2013, dt._____________). …Respondents.
Petition filed under Section 166(1)(C) of M.V. Act
This petition is coming on 09.08.2017 before me for final hearing in the presence of Sri K.Venkateshwar Rao, Advocate for the petitioners; and of Sri V.Venugopal, Advocate for Respondents No.5 to 7; and of Sri 2 MVOP.15 OF 2009 Ch.Madan Mohan, Advocate for the respondent No.8 and 9; petition against R.3, R.4 dismissed, having heard and having stood over for consideration to this day the Court delivered the following:
:: A W A R D::
1.The petitioners filed this petition seeking compensation of
Rs.5,00,000/- with subsequent interest on account of death of the deceased Bandari Jagan Rao in motor vehicle accident.
2.The pleadings of the petitioners are as follows:-
The first petitioner is the wife, petitioner No.2 and 3 are the minor daughter and son of the deceased, whereas petitioner NO.4 is the mother of the deceased, residents of Ramannapet village of Mallial mandal. Ipso- facto, Bandari Jagan Rao was an agriculturist/running Dish cable TV
Ramannapet who used to earn Rs.10,000/- p.m.
While so, on 11.02.2007 first petitioner and the deceased together attended the death ceremony of elder sister of the father-in-law of P.1 at
Luxettipet, whereas P.1 returned to Jagtial by bus, whereas the deceased
Jagan Rao returned to Jagtial on the Car of Bandari Tirupathi Rao/cousin brother of the deceased and later the deceased Jagan Rao while returning to Mutyampet on motor cycle bearing NO.AP-1A-221 (Hero Honda CD 100
Delux) from Jagtial, when he reached SRSP main canal bridge Dharoor village outskirts by 2100 hours, it is R.1 who drove the private bus bearing No.AIF-1544 in a rash and negligent manner with high speed came opposite to deceased and hit his motor cycle, resulting he received head injury, injuries to his right hand and right leg and while he was being shifted to Government Hospital, Jagtial by Dontha Praveen Rao, on the way the deceased succumbed to the injuries and a case in Cr.No.24/2007 of Jagtial Rural has been registered against R.1.
3 MVOP.15 OF 2009 Ipso-facto, at the time of accident the deceased was aged about 42 years, who was hale and healthy and due to the accident the petitioners became destitutes, lost their dependency, the petitioners are dependents on the income of the deceased for their survival, the petitioners have no source of income of survival. Ipso-facto, R.1 is the driver of the offending vehicle bus, R.2 was the owner of the same who insured the same with R.8 and R.9 under Ex.R.7 insurance policy.
Therefore, the petition may be allowed as prayed for. Ipso-facto, the accident was due to rash and negligent driving by R.1 of crime bus/vehicle.
3.The petition against R.3 and R.4 was dismissed.
4.The respondent No.1 filed his counter adopted by R.2 contending inter-alia, that the present petition itself is not maintainable either in law or on facts and liable to be dismissed in limini.
Ipso-facto, the answering R.1 and R.2 do not know about the earning capacity of the deceased and whether the petitioners are the dependents on the income of the deceased. A contraricsensu, R.1 is no way concerned to the alleged accident. A contraricsensu, on the day of the accident the deceased himself in inebriated condition drove the motor cycle in a rash and negligent manner dashed against the bus, but by suppressing the true facts, by managing the concerned police falsely implicated the offending vehicle bus and when the bus is noway concerned to the accident, R.1 and R.2 are not liable to pay any compensation.
A contraricsensu, R.2 insured the offending vehicle with R.3 and if at all the petitioners are entitled for any compensation amount it has to be paid by insurance company and not the answering R.1 and R.2.
4 MVOP.15 OF 2009
4.The respondent No.4 filed counter, contending inter-alia that
R.4 did not issue any cover note policy to the offending vehicle as on the date of the accident.
It is denied that on 11.02.2007 the deceased started from
Jagtial on motor cycle bearing No.AP-1A-221 at 2100 hours and when he reached near SRSP main canal bridge situated at outskirts of Dharoor village, it is R.1 who drove the bus in a rash and negligent manner with high speed and caused the accident.
A contraricsensu, the present petition itself is liable to be dismissed for non-joinder of necessary parties i.e. owner and insurer of motor cycle bearing No.AP-1A-221. A contraricsensu, the claim of the petitioners are excessive, usurious, exorbitant.
5.The R.5 to R.7 have filed a counter, contending inter-alia in the event of granting compensation since the vehicle involved in the accident was insured with R.3 insurance company, as such R.3 alone is liable to pay compensation amount to the petitioners.
Ipso-facto, the bus AIF-1544 is unconcerned to the accident.
Therefore, the version of the petitioners that R.1 drove the offending bus vehicle in a rash and negligent manner with high speed and caused the accident which version is not correct and that the petitioners are not entitled for the petition mentioned relief sought for.
6.The respondent No.8 and 9 have filed their counter contending inter-alia that the present petition itself is not maintainable either in law or on facts and liable to be dismissed in limini.
5 MVOP.15 OF 2009 It is denied that it is R.1 who drove the bus AIF-1544 in a rash and negligent manner with high speed and caused the accident. A contraricsensu, the answering respondents do not know about the criminal proceedings initiated against R.1. It is denied that the deceased Bandari
Jagan Rao was aged about 42 years at the time of accident and was earning Rs.10,000/- per month by doing agriculture and by operating
Cable Dish TV in the vilalge Ramannapet. A contraricsensu, the claim of the petitioners is exorbitant, usurious, excessive.
Ipso-facto, the answering R.8 and R.9 are not liable to pay any compensation to the petitioners and that the petitioners are not entitled for the same, as such the present petition itself is mis-conceived and not maintainable and it is liable to be dismissed in limini.
7.The respondents No.5 to 7 have filed additional counter contending that they do not have any personal knowledge about the earning capacity of the deceased and do not know whether the petitioners are purely dependents on the income of the deceased.
A contraricsensu, since the offending bus was insured with
R.3, as such R.3 alone is liable to pay compensation to the petitioners if awarded by this Hon'ble tribunal.
8.Basing on the above pleadings the following issues have been framed for trial:
1.Whether the accident had occurred due to rash and negligent driving of the offending vehicle bearing No.AIF- 1544 ?
2.Whether the petitioners are entitled for compensation, if so, to what amount and from whom?
3.To what relief?
6 MVOP.15 OF 2009
9.To support the version of the petitioners, petitioner No.1
Bandari Madavi has examined herself as PW.1 and also examined Bandari
Tirupathi Rao, S/o.Venkat Rao, Ramannapet as PW.2 and got marked
Ex.P.1 to Ex.P.7.
10.A contraricsensu, to disprove the version of the petitioners,
R.5 to 7 got marked Ex.R.1 with consent and after closure of both sides evidence arguments were heard.
11.The learned counsel for the petitioners have vehemently argued, that the deceased Bandari Jagan Rao was an agriculturist/owner of Cable Dish TV who used to earn Rs.10,000/- p.m. who used to utilize his entire income for the welfare of the petitioners.
While so on 11.02.2007 at 2100 hours while the deceased was proceeding to Mutyampet on motor cycle bearing NO.AP-1A-221 (Hero
Honda CD 100 Delux), when he reached SRSP main canal bridge by 2100
hours situated at the outskirts of Dharoor village, it is R.1 who drove the private bus bearing No.AIF-1544 in a rash and negligent manner with high speed, came opposite to the deceased and dashed against him, resulting the deceased received head injury, injury to his right hand and right leg and while he was being shifted to Government Hospital, Jagtial, on the way he succumbed to the injuries and a case in Cr.No.24/2007 of Jagtial
Rural has been registered.
Ipso-facto, the petitioners are purely dependents on the income of the deceased and due to the sad demised of the deceased
Jagan Rao, the petitioners became destitutes and the petitioner No.4 lost her beloved son and the petitioner No.2 and 3 lost their beloved father and P.1 lost her husband/life companion and a case in Cr.No.24/2007 of 7 MVOP.15 OF 2009 Jagtial Rural has been registered against R.1.
As such the respondents are jointly and severally liable to pay compensation to the petitioners and the petitioners are entitled for the petition mentioned relief sought for hence prays to allow the petition with costs.
12.A contraricsensu, the counsel for R.5 to R.7 have vehemently argued that R.2 insured the offending bus with R.8 and R.9 under Ex.R.1 policy which was in force at the time of the accident and ipso-facto R.1 was not at fault who did not cause any accident but under the influence of the petitioners a case was unnecessarily booked against R.1 who did not cause any accident, even if this tribunal feels that the petitioners are entitled for the petition mentioned relief, in such an event it is R.8 and R.9 who have to pay compensation to the petitioners and not the progeny of
R.2 i.e. R.5 to R.7, as such R.5 to R.7 need not pay any compensation to the petitioners and that the petitioners are not entitled for the same.
13.The counsel for R.8 and R.9 have vehemently argued that though R.1 is unconcerned to the accident, who did not cause any accident to late Jagan Rao, but it is the petitioners to grab more amounts from R.8 and R.9 falsely implicated R.8 and R.9 to gain wrongfully. Ipso- facto, the petitioners have miserably failed to prove that the deceased was earning Rs.10,000/- p.m. and that they have miserably failed to file any document showing that the deceased was an agriculturist/owner of Cable
Dish TV Ramannapet, as such the claim of the petitioners cannot be entertained and that the present petition itself is liable to be dismissed in limini.
8 MVOP.15 OF 2009 14.ISSUE NO.1:
Heard. Perused the record.
To support the version of the petitioners, petitioner No.1
Bandari Madavi has examined herself as PW.1 and also examined Bandari
Tirupathi Rao, S/o.Venkat Rao, Ramannapet as PW.2 and got marked
Ex.P.1 to Ex.P.7.
PW.1 has deposed that Bandari Jagan Rao the deceased is her husband, blessed with two children P.2 and P.3, ipso-facto P.4 is her mother-in-law. While so on 11.02.2007 at 2100 hours at outskirts of
Dharoor village when her husband late Jagan Rao was proceeding on motor cycle AP-1A-221 (Hero Honda CD 100 Delux) to visit Mutyampet by 2100 hours when her husband reached SRSP main canal bridge outskirts of Dharoor, it is R.1 who drove private bus AIF-1544 in a rash and negligent manner with high speed, dashed against her husband by coming on his opposite direction, resulting her husband received head injury and an injury on his right hand and right leg, while transit to Government
Hospital, Jagtial by Bandari Tirupathi Rao her husband succumbed to injuries and a case in Cr.No.24/2007 of Jagtial Rural has been registered against R.1. Ipso-facto, her husband was 42 years of age at the time of the accident who used to earn Rs.10,000/- p.m. by doing agriculture and by operating Dish TV at Ramannapet, due to the sad demised of her husband they lost their dependency became destitutes, lost their survival, therefore they are entitled to the petition mentioned relief sought for, hence prays to allow the petition with costs.
PW.2 Bandari Tirupathi Rao deposed that he witnessed the accident and it is R.1 who caused accident at SRSP main canal bridge, outskirts of Dharoor village and it is R.1 who drove the Bus AIF-1544 in a rash and negligent manner and hit the deceased, resulting the deceased 9 MVOP.15 OF 2009 succumbed to injuries and case in Cr.NO.24/2007 of Jagtial Rural has been registered against R.1, as such the petitioners are entitled for the petition mentioned relief sought for, hence prays to allow the petition with costs.
A contraricsensu, the respondents didn't step into witness box and didn't adduce any evidence, as such the case set up by the respondents 8 and 9, 5 to 7 that R.1 was not at fault and it is the deceased who drove the motor cycle of him in a rash and negligent manner and dashed against the offending bus AIF-1544 on 11.02.2007 at 2100 hours at Dharoor outskirts near SRSP main canal bridge, cannot be accepted.
A contraricsensu, the petition against R.3 and R.4 is dismissed. If really R.1 didn't cause any accident, he/R.1 would have stepped into witness box and would have adduced his side evidence denying the version of the petitioners about the mode of accident, but he did not do so.
A contraricsensu, R.5 to R.7 also did not step into witness box and did not adduce any evidence, as such an adverse inference has to be drawn against R.1, 5 to 9 which shows that it is R.1 who drove the offending bus vehicle AIF-1544 in a rash and negligent manner with high speed and dashed against the deceased Jagan Rao at Dharoor outskirts
SRSP main canal bridge and caused accident and this issue is answered accordingly in favour of the petitioners and against the respondents.
15.ISSUE NO.2:
A contraricsensu, as seen from Ex.A.6, it is clear that a case in
Cr.No.24/2007 of Jagtial rural has been registered against R.1 u/sec.304-
A IPC where the Investigating officer has opined that it is R.1 who drove 10 MVOP.15 OF 2009 the offending bus AIF-1544 in a rash and negligent manner came opposite to the deceased Bandari Jagan Rao's motor cycle AP-1A-221 (Hero HOnda
CD 100 Delux) while he was proceeding to Mutyampet and hit the deceased at SRSP main canal bridge at the outskirts of Dharoor village and caused the accident resulting the deceased received head injury and injury on his right hand and right leg and while being shifted to Jagtial
Civil Hospital he succumbed to injuries, nici R.1 caused the accident, there is no question of Investigating Officer Jagtial Rural booking a case against
R.1 u/Sec.304-A IPC.
A contraricsensu, Form No.54 covered under Ex.A.5 prima- facie speaks that it is R.1 who caused the accident supported by Ex.A.4,
A.1, A.2, A.3.
A contraricsensu, the respondents did not step into witness box and did not adduce any evidence.
If really R.1 did not cause any accident, certainly would have stepped into witness box and would have denied the version of the petitioners about the mode of the accident but he did not do so, as such an adverse inference has to be drawn against R.1, as such it is presumed that it is R.1 who caused the accident resulting Bandari Jagan Rao/the deceased succumbed to injurees. A contraricsensu, if we see Ex.A.1, A.2,
A.3 it is clear by the time of the accident the deceased was aged about 42 years.
No doubt true, PW.1 in her evidence/testimony has admitted that she did not witness the accident, wherein PW.2 the cousin brother of the deceased Bandari Tirupathi Rao has deposed that he witnessed the accident and it is R.1 who caused the accident.
11 MVOP.15 OF 2009 A contraricsensu, though the petitioners version that the deceased was an agriculturist/operating Dish TV Ramannapet who used to earn Rs.10,000/- p.m. but they did not file any document supporting such version.
Normally an agricultural coolie would get above Rs.100/- per day. The petitioners version is that the deceased alleged to be attached to agriculture and running Dish TV Ramannapet, being the owner of the same. But PW.1 did not file any document supporting that the deceased
Bandari Jagan Rao was attached to agriculture and running Dish TV
Ramannapet, even if the deceased attends any agricultural operation work, per day he would earn more than Rs.100/- per day. A contraricsensu, the respondents did not adduce any rebuttable evidence about the avocation of the deceased. A contraricsensu, PW.1 and 2 have agitated that the deceased was actively involved in agriculture who used to cultivate the deceased ancestral property lands, therefore, it would be just and reasonable to hold that the deceased was earning Rs.2600/- p.m.
As per the Judgment of Rajesh's case reported in 2013 ACJ 1403 SC not only government employees but those who are self employed or who have regular income and are working at fixed wages would be entitled to an addition of 50% to the actual income while computing future prospects.
Admittedly the deceased was only aged 42 years at the time of the accident and he had bright future, had he not met with the accident, he would have certainly earn much more income. In the above said circumstances, 50% i.e. Rs.1300/- is added to the regular income of
Rs.2600/- and the income of the deceased is taken @ Rs.3900/- p.m.
12 MVOP.15 OF 2009 Admittedly the deceased was blessed with two children.
Therefore, 1/3rd has to be deducted for his personal expenses, if 1/3rd is deducted for personal expenses of the deceased, after deducting 1/3rd the monthly loss of income of the deceased would be Rs.2600/- and the annual loss of earnings would be Rs.31,200/-. Since age of the deceased as per Ex.A.1 to A.4 is 42 years by the time of the accident. As per the judgment of Sarla Verma and others, Appellants V. Delhi Transport
Corporation and another, Respondents (2009 ACJ 1298) the appropriate multiplier applicable to the age of the deceased is ‘14’.
Therefore the total loss of earnings would come to Rs.31,200 x 14 =
Rs.4,36,800/-.
In addition to that the claimants are entitled to a sum of
Rs.25,000/- towards funeral expenses.
As per the Judgment of the Apex Court in the case of Vimal
Kanwal Vs. Kishore Dam, 2013 ACJ 1441 SC the mother is entitled to a compensation of Rs.30,000/- towards loss of love and affection. Thus the petitioners are entitled to a total compensation amount of
Rs.4,91,800/-.
It is also settled law that irrespective of the claim made by the claimants the Tribunal should award just and reasonable compensation as per Rajesh's case 2013 ACJ 1403 SC (mentioned supra).
Now the version of the R.5 to R.7 who are the LRs of R.2 have agitated that as R.2 obtained Ex.R.1 policy and the offending vehicle bus was insured with R.8 and R.9 the petitioners cannot claim compensation amount from them and if at all it is R.8 and R.9 to pay the compensation to the petitioners if really they are entitled for the same.
13 MVOP.15 OF 2009 A contraricsensu, if we see the record i.e Ex.R.1 it is clear that
R.2 obtained Ex.R.1 policy from R.8 and R.9 which was in force at the time of the accident, Ex.A.5 Form No.54 supports the same and by the time of the accident R.1 was holding valid driving licence bearing
No.DLRAP015248432004 issued by RTA Karimnagar and R.2 insured the offending bus AIF 1544 private bus with R.8 and R.9 whose validity period is up to 16.02.2007 from 17.02.2006 and when R.2 insured the offending bus AIF 1544 with R.8 and R.9 under Ex.R.1 policy, now R.8 and R.9 cannot say that R.1 and R.2 flouted the terms and conditions of Ex.R.1 policy and in lieu of existence of Ex.R.1 policy as R.2 insured the offending crime vehicle bus with R.3 which was in force by the time of the accident, it is R.8 and R.9 who has to pay the said compensation amount mentioned supra to the petitioners on account of its obligation and insurance policy covered under Ex.R.1 and the petitioners are entitled to claim interest on the said compensation amount @ 7.5% p.a. from the date of petition till the date of realization. The R.8 and R.9 being the insurer of crime bus vehicle are liable to pay compensation amount to the petitioners as mentioned supra thus the issue No.2 is accordingly answered in favour of the petitioners and against the respondents.
16.ISSUE NO.3: TO WHAT RELIEF?
In the result, this claim petition is partly allowed with proportionate costs directing the Respondents 1, 5 to 9 jointly and severally liable to pay compensation of Rs.4,91,800/- with subsequent interest @ 7.5% p.a.
from the date of petition till the date of realization to the petitioners.
Out of the awarded amount, the first petitioner is entitled to receive Rs.1,50,000/- with interest accrued thereon, and the petitioners
No.2 and 3 are entitled to receive Rs.1,41,800/- to be shared among them 14 MVOP.15 OF 2009 equally with interest accrued thereon and the petitioner No.4 is entitled to receive Rs.2,00,000/- with interest accrued thereon. The first petitioner is permitted to withdraw an amount of Rs.1,25,000/- with interest accrued thereon and Petitioner No.4 is permitted to withdraw Rs.1,50,000/- with interest accrued thereon and the amount of Petitioners No.2 and 3 shall be deposited in Andhra Bank, Court complex area, Jagtial branch till they attain majority of age and after their attaining majority they are at liberty to withdraw the same with accrued interest thereon.
The balance amount of petitioner No.1 and 4 shall be deposited in Andhra Bank, Court Complex area, Jagtial Branch for a period of one year and thereafter they are at liberty to withdraw the same with accrued interest thereon. The respondents No.8 and 9 are directed to deposit the said compensation amount within two months from the date of this order before this tribunal. Fee of advocate is fixed at Rs.4000/-.
Dictated to the Stenographer Gr.II, transcribed by him, corrected and
pronounced by me in the open Court on this the 16th day of August, 2017.
Chairman, MACT-cum-
II-ADDL. DISTRICT JUDGE,
KARIMNAGAR AT JAGTIAL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the petitioners: For the Respondents:
PW.1: Bandari MadaviNIL PW.2: Bandari Tirupathi Rao
EXHIBITS MARKED
For the petitioners:
Ex.P.1: Certified copy of F.I.R. Ex.P.2:Certified copy of Report Ex.P.3:Certified copy of Final report Ex.P.4:Certified copy of PME Report Ex.P.5:Certified copy of Inquest report Ex.P.6: Certified copy of MVI Report Ex.P.7:CC of Form No.54
For the respondents:
Ex.R.1:CC of Policy copy Ex.R.2:Copy of notice Ex.R.3: Postal receipt Ex.R.4:Copy of legal notice to R.2 Ex.R.5:Postal receipt
Chairman, MACT-cum-
II-ADDL. DISTRICT JUDGE,
KARIMNAGAR AT JAGTIAL.