SCCH-21 1 [CASE NUMBER] c/w. 3630.18 IN THE COURT OF XVII ADDL. JUDGE, COURT OF SMALL CAUSES, & MEMBER, M.A.C.T, MAYO HALL UNIT, BENGALURU (SCCH-21) Dated this the 17th Day of May 2019 PRESENT: Smt. [ENTITY], B.A.Law, L.L.B, XVII ADDL. JUDGE, Court of Small Causes & Member, M.A.C.T., Bengaluru. [CASE NUMBER] c/w. M.V.C. No. 3630/2018 PETITIONER/S 1. Sri. [ENTITY], (in [CASE NUMBER]) S/o. [ENTITY], Aged 45 years, 2. Smt. [ENTITY], W/o. [ENTITY], Aged 42 years, Residing at: Allipura Village, Gowribidanur Taluk, Chikkaballapur Dist. Karnataka - 561213. PETITIONER/S 1. Sri. [ENTITY], (in [CASE NUMBER]) S/o. [ENTITY], Aged 43 years, 2. Smt. [ENTITY], W/o. [ENTITY], Aged 38 years, Residing at: Allipura Village, Gowribidanur Taluk, Chikkaballapur Dist. Karnataka - 561213. SCCH-21 2 [CASE NUMBER] c/w. 3630.18 (By Sri. [ENTITY], Advocate in both the cases) - V/s - Respondents: 1. [ENTITY], (in both the cases) S/o. [ENTITY], Residing at No.191, Ramayanadawara Street, Gowribidanur Town, Chikkaballapur Dist. Karnataka. (RC owner of the Lorry bearing Reg.No.KA- 40-A-4996) (By Sri. [ENTITY], Advocate in both cases) 2. National Insurance Co., Ltd., Regional Office, Subram Complex, M.G. Road, Bangalore - 560 001. ([CASE NUMBER] Valid from 01.03.2018 to 28.02.2019) (By Sri. [ENTITY], Advocate in both the cases) COMMON JUDGMENT The petitioners of [CASE NUMBER] have filed these petitions under [SECTION] of the [ACT] seeking compensation for the death of [ENTITY] and [ENTITY] in the road traffic accident that took place on 11.05.2018. SCCH-21 3 [CASE NUMBER] c/w. 3630.18 2. The petitioners of [CASE NUMBER] have filed application to club [CASE NUMBER] with it. The said application came to be allowed on the ground that petitioners in both the claim petitions are claming compensation in respect of same accident and the respondents in both the claim petitions are one and the same and thereby, [CASE NUMBER] is clubbed with [CASE NUMBER] to lead common evidence and to consider both the claim petitions together. 3. The brief facts of the case of the petitioners as follow:- On 11.05.2018 at about 1.15 p.m., while deceased [ENTITY] and [ENTITY] were standing on the left side of Bevinahalli Allipura road, Near Bevinahalli Village, Gowribidanur Taluk, Chickballapura, the driver of lorry bearing Reg. No. KA-40-A-4996 by driving it in a rash and negligent manner, dashed against the deceased, caused the accident and as a result, they have succumbed to the injuries. 4. It is contended by the petitioners in [CASE NUMBER] that, deceased as aged 14 years at the time of accident and he was studying in 8th Std., at Noble school. Due to the death of their son, petitioners are undergoing mental agony and they have lost love and affection of their son. 5. It is contended by the petitioners in [CASE NUMBER] that, deceased as aged 14 years at the time of accident and he SCCH-21 4 [CASE NUMBER] c/w. 3630.18 was studying in 8th Std., at Shivamogga. Due to the death of their son, petitioners are undergoing mental agony and they have lost love and affection of their son. It is contended by the petitioners of both the cases that the accident was occurred due to the rash and negligent driving by the driver of Lorry bearing Reg. No. KA-40-A-4996. Hence, the first respondent being the owner and second respondent being the insurer of the offending lorry are jointly and severally liable to pay the compensation. 6. On service of notice in both the claim petitions, respondents No.1 & 2 entered their appearance through their respective learned counsels and filed their objection statements in both the claim petitions. 7. The 1st respondent in his objection statement denied the income, occupation, the medical expenses and the funeral expenses made by the petitioners. The respondent no.1 has denied the alleged accident. He has contended that driver of the lorry was holding valid driving license at the time of accident and insurance policy was in force at that time. If the tribunal comes to the conclusion that petitioners are entitled for the compensation, same may be saddled to the 2nd respondent. Hence on all these grounds sought for dismissal of both the claim petitions. 8. The 2nd respondent in its objection statement has denied all the petition averments of both the claim petitions SCCH-21 5 [CASE NUMBER] c/w. 3630.18 and contended that the petitions are not maintainable either on facts or law. The 2nd respondent has denied the age of the deceased. It has also denied the amount spent towards funeral expenses of the deceased. The respondent No.2 has denied the relationship of the deceased with the petitioners, the alleged involvement and negligence of the driver of the lorry. It has contended that the driver of lorry was not holding valid driving license at the time of accident. It has further contended that, its liability is subject to the terms and conditions of the policy. The 2nd respondent further contended that the compensation and interest claimed by the petitioners of both the claim petitions are excessive and exorbitant. Hence, on all these grounds sought for dismissal of both the claim petitions. 9. Based on the pleadings this Court has framed the following common issues in both the cases:- ISSUES in [CASE NUMBER] 1. Whether the Petitioners prove that, on 11.05.2018 at about 1.15 p.m., while deceased [ENTITY] & [ENTITY] were standing on the left side of Bevinahalli Allipura road, Near Bevinahalli Village, Gowribidanur Taluk, Chickballapur, the driver of lorry bearing Reg. No. KA-40-A-4996 by driving it in a rash and negligent manner, dashed against the deceased, caused the accident and as a result, SCCH-21 6 [CASE NUMBER] c/w. 3630.18 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? 10. In order to prove the case, 1st petitioner in M.V.C. No.3629/18 and [CASE NUMBER] got examined themselves as PW.1 & 2 and got marked Ex.P1 to 19 documents. On the other hand, 1st respondent got examined himself as RW.1 and got marked Ex.R.1 to 8 documents. The respondent No.2 has not led its evidence. 11. Heard the arguments. 12. My answers to the issues in both the claim petitions are as follows: Issue No.1 (in both the cases ) In the Affirmative, Issue No.2 (in both the cases) Partly in the Affirmative, Issue No.3 (in both the cases ) As per final order for the following:- REASONS 13. Issue No.1 in both the cases: It is the case of the petitioners in both the claim petitions that, on 11.05.2018 at about 1.15 p.m., while deceased [ENTITY] & Syed SCCH-21 7 [CASE NUMBER] c/w. 3630.18 Jasim Abbas were standing on the left side of Bevinahalli Allipura road, Near Bevinahalli Village, Gowribidanur Taluk, Chickballapura, the driver of lorry bearing Reg. No. KA-40-A- 4996 by driving it in a rash and negligent manner, dashed against the deceased, caused the accident and as a result, they have succumbed to the injuries. The petitioners have produced F.I.R, F.I.S, [ENTITY], Sketch, IMV report, PM Reports, Inquest reports and Charge Sheet as per Ex.P1 to 8 and Ex.P14 and 15. 14. The accident occurred on 11.05.2018 at 1.15 p.m. The FIS lodged on the same day at 2.30 p.m clearly narrating the incident. The MV report at Ex.P5 shows the damages caused to the offending lorry. No explanation given by the respondents for the damages caused to said lorry. It clearly shows the involvement of the offending lorry in the accident. There are no reason to distrust the evidence of the petitioners in this regard. 15. It is stated that the deceased were standing on the side of the road. As per [ENTITY] and Sketch produced at Ex.P3 and 4, the total width of the road at the place of accident was 8 ft. and incident occurred at the distance of 2 ft. from the northern edge of the road. The doctrine of reasonable care imposes an obligation on the driver of the lorry to take care of the pedestrian on the road and that duty attains a higher degree when the pedestrian happened to be the children of tender years. In the present case, deceased were aged 12 and SCCH-21 8 [CASE NUMBER] c/w. 3630.18 14 years. Therefore, in the decision of Hon'ble Supreme Court rendered in the case of Ravi Kapur vs. State of Rajasthan 2012) 9 SCC 284), the Hon'ble Supreme Court has observed as here below: "The doctrine of reasonable care imposes an obligation or a duty upon a person(for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrian. They are expected to take sufficient care to avoid danger to others." 16. In the present case, neither the 1st respondent nor the driver of the lorry has contended that, he has tried to avoid the accident either by applying the break or tried to deviate the path of the vehicle. It is not even contended that deceased suddenly entered the road. Therefore, the evidence on record is clear that the driver of the lorry failed to take reasonable care to protect the deceased. The driver of the lorry was expected to recognize the deceased on the road and he should have taken care and he should have slowed down his vehicle. This omission of the driver of the lorry constitutes negligence on his part. After the investigation, the Investigating Officer has filed charge sheet against the driver of the offending lorry concluding that the accident was occurred only due to his negligence. There is no reason to take a different view. Therefore, I hold that the accident was occurred only due to SCCH-21 9 [CASE NUMBER] c/w. 3630.18 the rash and negligent act of driver of the offending lorry. Hence, I answer Issue No.1 in the Affirmative. 17. Issue No.2 in [CASE NUMBER]: While answering issue No.1, I have already observed that the accident was occurred due to rash and negligent driving of driver of lorry bearing Reg. No. KA-40-A-4996. Petitioner No.1 is stated to be father and Petitioner No.2 is stated to be mother of the deceased. But, the respondent no.2 has denied the relationship of Deceased with the petitioners. Petitioners have produced the aadhar card, transfer certificate and school ID card of the deceased at Ex.P9, 12 and 13. It reveals the name of the petitioners as father and mother of the deceased. Hence, the contention of the second respondent cannot be accepted. Therefore, petitioners are entitled for the compensation. 18. The petitioners herein have contended that deceased was aged 14 years at the time of accident. The date of birth of deceased is mentioned as 10.06.2005 in the notarized copy of Aadhar card, Transfer certificate and ID card of the deceasd. The accident was occurred on 11.05.2018. Hence, the age of the deceased as on the date of accident was 12 years. 18. In the case of [ENTITY] and another vs. Lala and others 2014)1 SCC 244), the Hon'ble Supreme Court has dealt in respect of quantum of compensation in a case of death of a minor child less than 15 years and held that, in the case of death of children aged less than 15 years, for the purpose of SCCH-21 10 [CASE NUMBER] c/w. 3630.18 calculation of loss of dependency, the notional income of deceased child shall be considered Rs.30,000/- per year by applying the age of the younger parent for the purpose of determination of the multiplier. Further, the Hon'ble Supreme Court also held that an additional sum of Rs.50,000/- shall be awarded under conventional heads towards loss of love and affection, funeral expenses, last rites etc. The aforesaid [ENTITY]'s case is also relied by our Hon'ble High Court in the decision reported in [CASE NUMBER] dated 03.03.2016 (Sudeer Bediguthu and another vs. P. Mahalingam and another(DB , while awarding compensation to the deceased aged less than 15 years. Hence, in the present case, the deceased was just aged 12 years. Therefore, relying upon the said decisions, it would be just and reasonable to take notional income of minor deceased [ENTITY] @ Rs.30,000/-. Petitioner No.1 is the father and petitioner No.2 is the mother. The notarized copy of Aadhar card of petitioner No.2 is produced at Ex.P11. It shows her date of birth as 01.01.1973. Therefore, she was aged 45 years at the time of accident. Hence, for calculating the loss of dependency, the age of 2nd petitioner i.e. younger parent of the deceased has to be considered by applying the multiplier stated in the case of [PRECEDENT]. Hence, the multiplier of 14 to be applied in the present case. Therefore, the petitioners are entitled for compensation of Rs.4,20,000 (30,000 x 14) towards loss of dependency and Rs.50,000/- shall be awarded under the conventional head, love and SCCH-21 11 [CASE NUMBER] c/w. 3630.18 affection and funeral expenses and last rites. In total, petitioners are entitled for compensation of Rs.4,70,000/-. 19. As regard the apportionment of compensation is concerned, it is not in dispute that 1st petitioner is the father and petitioner No.2 is the mother of the deceased. Therefore, out of the total compensation, petitioners No. 1 and 2 are entitled for compensation at the ratio of 50:50. 20. Issue No.2 in [CASE NUMBER]: While answering issue No.1, I have already observed that the accident was occurred due to rash and negligent driving of driver of lorry bearing Reg. No. KA-40-A-4996. Petitioner No.1 is stated to be father and Petitioner No.2 is stated to be mother of the deceased. But, the respondent no.2 has denied the relationship of Deceased with the petitioners. Petitioners have produced the marks card and aadhar card of the deceased at Ex.P16 and 17. It reveals the name of the petitioners as father and mother of the deceased. Hence, the contention of the second respondent cannot be accepted. Therefore, petitioners are entitled for the compensation. 21. The petitioners herein have contended that deceased was aged 14 years at the time of accident. The date of birth of deceased is mentioned as 24.10.2003 in the marks card and notarized copy of Aadhar card of the deceased. The accident was occurred on 11.05.2018. Hence, the age of the deceased as on the date of accident was 14 years. SCCH-21 12 [CASE NUMBER] c/w. 3630.18 22. In the case of [ENTITY] and another vs. Lala and others 2014)1 SCC 244), the Hon'ble Supreme Court has dealt in respect of quantum of compensation in a case of death of a minor child less than 15 years and held that, in the case of death of children aged less than 15 years, for the purpose of calculation of loss of dependency, the notional income of deceased child shall be considered Rs.30,000/- per year by applying the age of the younger parent for the purpose of determination of the multiplier. Further, the Hon'ble Supreme Court also held that an additional sum of Rs.50,000/- shall be awarded under conventional heads towards loss of love and affection, funeral expenses, last rites etc. The aforesaid [ENTITY]'s case is also relied by our Hon'ble High Court in the decision reported in [CASE NUMBER] dated 03.03.2016 (Sudeer Bediguthu and another vs. P. Mahalingam and another(DB , while awarding compensation to the deceased aged less than 15 years. Hence, in the present case, the deceased was just aged 14 years. Therefore, relying upon the said decisions, it would be just and reasonable to take notional income of minor deceased [ENTITY] @ Rs.30,000/-. Petitioner No.1 is the father and petitioner No.2 is the mother. The notarized copy of Aadhar card of petitioner No.2 is produced at Ex.P18. It shows her date of birth as 06.03.1979. Therefore, she was aged 39 years at the time of accident. Hence, for calculating the loss of dependency, the age of 2nd petitioner i.e. younger parent of the deceased has to be considered by applying the multiplier stated in the case of [PRECEDENT]. Hence, the SCCH-21 13 [CASE NUMBER] c/w. 3630.18 multiplier of 15 to be applied in the present case. Therefore, the petitioners are entitled for compensation of Rs.4,50,000 (30,000 x 15) towards loss of dependency and Rs.50,000/- shall be awarded under the conventional head, love and affection and funeral expenses and last rites. In total, petitioners are entitled for compensation of Rs.5,00,000/-. 23. As regard the apportionment of compensation is concerned, it is not in dispute that 1st petitioner is the father and petitioner No.2 is the mother of the deceased. Therefore, out of the total compensation, petitioners No. 1 and 2 are entitled for compensation at the ratio of 50:50. 24. Petitioners are claiming interest on the compensation amount. The respondents have denied the same. Our Hon'ble High Court in the case rendered in [PRECEDENT] dated 18.01.2019) has awarded interest @ 9% per annum. Considering the aforesaid decision, I deem it proper to award interest at 9% per annum on the above compensation amount in both the claim petitions. 25. Liability: Regarding fixation of liability is concerned, I have already observed that, accident was taken place due to the negligence on the part of the driver of lorry bearing Reg. No. KA-40-A-4996. It is not in dispute that 1st respondent is the owner of the offending lorry. The respondent No.1 has produced notarized copy of history sheet for drivers SCCH-21 14 [CASE NUMBER] c/w. 3630.18 extract, driving license of the driver of the lorry and certified copy of insurance policy as per Ex.R2, 3 and 8. It shows that the insurance policy was in force and driver of the offending lorry was holding valid driving license at the time of the accident. Hence, 1st respondent being the owner and 2nd respondent being the insurer of the offending lorry are jointly and severally liable to pay the compensation. The 2nd respondent being the insurer shall indemnify the 1st respondent in payment of compensation amount in both the claim petitions. Accordingly, I answer issue No.2 partly in the Affirmative in both the claim petitions. 26. Issue No.3 in both the claim petitions: In view of my findings on issues No.1 and 2 as above, I pass the following: ORDER
Both the claim petitions are allowed in part with cost.
The petitioners of [CASE NUMBER] are entitled for compensation of Rs.4,70,000/-(Rupees four lakhs seventy thousand only) with interest at the rate of 9% per annum from the date of petition till its realisation.
The petitioners of [CASE NUMBER] are entitled for compensation of Rs.5,00,000/- (Rupees five lakhs only) with interest at the rate of 9% per annum from the date of petition till its realisation.
The respondents No.1 & 2 being the owner and insurer of the offending lorry in both the claim petitions are liable to pay the compensation. The liability to pay the compensation is joint and several between the respondents. But, respondent No.2 shall indemnify the respondent No.1 in both the claim petitions and shall deposit the compensation amount within 30 days from the date of this order.
Out of the total compensation amount in [CASE NUMBER], the petitioners No.1 and 2 are entitled for compensation at the ratio of 50:50 respectively and on deposit of the compensation amount, 50% shall be released in the share of the petitioners No.1 and 2 and remaining 50% of the share amount shall be deposited for a period of 5 years in any nationalized bank in the name of petitioners No.1 and 2 with liberty to draw the periodical interest.
Out of the total compensation amount in [CASE NUMBER], the petitioners No.1 and 2 are entitled for compensation at the ratio of 50:50 respectively and on deposit of the compensation amount, 50% shall be released in the share of the petitioners No.1 and 2 and remaining 50% of the share amount shall be deposited for a period of 5 years in any nationalized bank in the name of petitioners No.1 and 2 with liberty to draw the periodical interest.
Advocate's fee is fixed at Rs.1,000/- each in both the cases.
Draw award accordingly.
Original of the judgment shall be kept in [CASE NUMBER] and a copy of the same be retained in [CASE NUMBER].
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 17th day of May 2019) ([ENTITY]) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
PW.1 : [ENTITY] PW.2 : [ENTITY]
Documents marked on behalf of the petitioners:
MVC-3629/18 Ex.P-1 : FIR Ex.P-2 : Complaint Ex.P-3 : [ENTITY] Ex.P-4 : Sketch Ex.P-5 : IMV report Ex.P-6 : Inquest report Ex.P-7 : PM report Ex.P-8 : Charge Sheet Ex.P.9 : Notarised copy of Aadhaar card of deceased Ex.P.10 & Notarized copy of aadhar cards of 1st and 2nd 11: petitioners Ex.P.12 : Transfer certificate of deceased Ex.P.13 : ID card of deceased MVC-3630/18 Ex.P-14 : Inquest report Ex.P-15 : PM report Ex.P-16 : Marks card of deceased Ex.P-17 : Notarised copy of Aadhaar card of deceased Ex.P-18 & Notarized copy of aadhar cards of 1st and 2nd 19 : petitioners Witnesses examined on behalf of the respondents :
RW.1 : [ENTITY] Documents marked on behalf of the respondents:
Ex.R-1 : Notarised copy of R.C. Ex.R-2 : Notarised copy of History sheet for driver Ex.R-3 : Notarised copy of DL extract Ex.R-4 : Notarised copy of Certificate of fitness Ex.R-5 : Notarised copy of B-register extract Ex.R-6 : Notarised copy of Challen Ex.R-7 : Notarised copy of Goods carriage permit Ex.R-8 : Notarised copy of Insurance Policy ([ENTITY]) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.