Bangalore District CourtSmt.Leela Shetty vs The Managing Director on 7 April, 2017BEFORE VII ADDL. JUDGE, MACT & XXXII ACMM
      Court of Small Causes, Bangalore, (SCCH-3)

              DATED THIS THE 07th APRIL 2017

PRESENT:        Smt.GOMATI RAGHAVENDRA
                               LL.M, D.I.P.R, D.C.L
                VII Addl. Judge & XXXII ACMM,
                Court of Small Causes, Bengaluru.



                M.V.C.No.5250/2015


Petitioners     :    01. Smt.Leela Shetty,
                     W/o late Raghunatha Shetty @
                     Raghu Shetty,
                     Aged about 49 years,

                     R/a No.2-19A, Kakkuje Village,
                     Block No.1 & 2, Z.P.H.P. School,
                     Karkala,
                     Udupi - 574 108.

                     02. Smt.Saritha Shetty,
                     D/o late Raghunatha Shetty @
                     Raghu Shetty,
                     W/o Rajashekara.G,
                     Age 26 years,

                     03. Kum.Sangeetha Shetty,
                     D/o late Raghunatha Shetty @
                     Raghu Shetty,
                     Aged about 24 years,

                     All are R/a No.2062, HMT Main Road,
                     Pristiage,     Kensington       Garden,
                     Jalahalli, Bangalore - 560 013.
               (SCCH-3)      2            MVC 5250/15


                      And also R/a No.17, Basavasamithi
                      Layout,   Thindlu,   Vidyaranyapura,
                      Bangalore - 560 097.

                      (Sri.B.M.Chandrashekara, Advocate)

                             -Vs-
Respondent      :     The Managing Director,
                      K.S.R.T.C,
                      K.H. Road,
                      Shanthinagar,
                      Bangalore - 27.

                      (Sri.K.P.Ramesh, Advocate)

                           **********


                      JUDGMENTThis petition is filed by the petitioners U/s.166 of

theMotor    Vehicles    Act1989,    for   grant   of

compensation of Rs.24,85,000-00 on account of death

of Sri.Raghunatha Shetty @ Raghu Shetty, in a Road

Traffic Accident.02.   The case of the petitioners in brief is as

under:Petitioner No.1 is the wife, petitioner Nos.2 and 3

are the children of the deceased Raghunatha Shetty.(SCCH-3)       3           MVC 5250/15That   on    28-10-2015     Raghunatha     Shetty   was

proceeding as a pillion rider in a Scooter bearing reg.

No.KA-02-JC-0301 along with his P.G. electrician

M.Sunil and was proceeding from house to P.G., said

Sunil was riding the said vehicle in a careful and

cautious manner, by observing traffic rules, when they

reached     near   Tumkur       Road,   Marappanapalya

pedestrian cross, Yeshwanthapura at around 2.59

p.m., by that time the driver of KSRTC Bus bearing

Reg. No.KA-06-F-683 came with high speed, in a rash

and negligent manner, endangering to human life,

without observing movements of the vehicles and

dashed against Raghunatha Shetty, due to which

Raghunatha Shetty fell down along with rider and bus

ran over on the Raghunatha Shetty who suffered

severe injuries all over the body. Said Raghunatha

Shetty was shifted to Columbia Asia hospital, but on

the very day at around 5.35 p.m. he succumbed to the

injuries inspite of best treatment.(SCCH-3)     4            MVC 5250/1503.    The Yeshwanthapura Traffic Police have

registered a case against the driver of the KSRTC Bus

bearing Reg. No.KA-06-F-683 in their Cr. No.161/2015

and the deceased deadbody was shifted to M,.S.

Ramaiah hospital, wherein postmortem was conducted

and deadbody was handed over to the petitioners and

Chargesheet was filed against driver of KSRTC Bus.04.    The deceased was working as Manager in

Chaithanya P.G. at the time of accident and was

earning Rs.20,000-00 p.m. He was the bread winner of

the family, aged 52 years at the time of accident. Due

to sudden death of the deceased, petitioners are

undergoing great mental shock and agony. Hence this

petition.05.    Interalia respondent put its appearance

through its counsel and resisted the petition by filing

written statement wherein it has denied the manner of

the accident as alleged in the       petition. It has

specifically stated that the TVS Scooty rider came from

left side of the bus, without seeing big pothole, came(SCCH-3)       5           MVC 5250/15towards right side of the road, without noticing arrival

of the bus behind and touched the left back wheel of

the bus and due to the above reason pillion rider came

under left back wheel of the bus and as such said

accident due to negligent act of both parties. Thus,

denying rest of the contents, this respondent has

sought for dismissal of the petition.06.   Based on the aforesaid rival pleadings and

materials available on record, the following Issues have

been framed: -ISSUES1. Whether the petitioners prove that
           they are the LRs of deceased Sri.
           Raghunatha Shetty @ Raghu Shetty?2. Whether the petitioners prove that
           deceased Sri. Raghunatha Shetty @
           Raghu Shetty was died in RTA arising
           out of the accident alleged to have
           been taken place on 28-10-2015 at
           about 2.59 p.m., near Tumkur road,
           Marappanapalya      pedestrian    cross,
           Yeshwanthapura, Bengaluru due to the
           rash and negligent driving of the driver
           of KSRTC Bus bearing No.KA-06-F-683
           as alleged in the petition?(SCCH-3)           6            MVC 5250/153. Whether the petitioners are entitled
             for compensation? If so, what amount
             & from whom?4. What order or award?07.    In   support     of      the   petition   contents,

petitioner No.1 examined herself as P.W.1 and also

examined one more witness as P.W.2. They got marked

documents at Ex.P.1 to Ex.P.16. Respondent has

examined the driver of KSRTC as R.W.1.08.    Heard,    perused        materials   available   on

record.09.    My finding on the above Issues are as

under:-Issue   No.1     :        In the Affirmative
            Issue   No.2     :        In the Affirmative
            Issue   No.3     :        Partly in the Affirmative
            Issue   No.4     :        As per the final order
                                           for the following:-

                           REASONS10.    Issue Nos.1 & 2:- As these Issues are inter-

related to each other, hence in order to avoid the

repetition of facts, these Issues are discussed together.(SCCH-3)       7           MVC 5250/1511.   As per the case of the petitioners that

petitioner No.1 is the wife, petitioner Nos.2 and 3 are

children of deceased Raghunatha Shetty @ Raghu

Shetty. In order to substantiate these contents,

petitioner No.1-Leela Shetty stepped into witness box

and led evidence as P.W.1, who in her affidavit

evidence has reiterated similar to petition contents. In

addition to her ocular evidence P.W.1 has relied upon

documents such as Death certificate of deceased at

Ex.P.11. She has also produced Ration card at

Ex.P.12, wherein the photographs of the petitioners

found as a family members. The Voter ID card of

petitioner Nos.1 and 2 marked at Ex.P.13 and Ex.P.15

respectively shows the name of Raghunath Shetty as

husband & father. The Aadhaar card at Ex.P.14

belongs to petitioner No.1 shows her husband name as

Raghunath     Shetty.   The    aforesaid   documentary

evidence coupled with      ocular evidence of P.W.1

establish the fact that petitioners are none other than(SCCH-3)       8            MVC 5250/15the wife and children of the deceased Raghunatha

Shetty @ Raghu Shetty.12.   It is further case of the petitioners that, said

Raghunatha Shetty @ Raghu Shetty succumbed to the

injuries on the relevant date, time and place due to

rash and negligent driving by the KSRTC Bus bearing

reg. No.KA-06-F-683. In support of such contentions,

P.W.1 has placed reliance of documents such as

Complaint, FIR, Crime report, Police intimation, spot

Mahazar, spot Sketch, Inquest report, PM report and

Charge sheet at Ex.P.1 to Ex.P.9 respectively. Perusal

of Complaint filed by one Sunil.M. S/o late Shivarama

Nayak at Ex.P.1 stating that Raghunatha Shetty died

in the accident caused by the driver of KSRTC Bus.

Based on the complaint FIR came to be registered as

per Ex.P.2 by Yeshwanthapura Traffic Police against

the driver of KSRTC Bus bearing reg. No.KA-06-F-683

for the offences punishable U/Sec 279, 337 ofIPCand

Sec 134(a) & (b), Sec 187 ofM.V. Act. The Crime report

is marked at Ex.P.3. Police intimation is marked at(SCCH-3)         9          MVC 5250/15Ex.P.4. Spot Mahazar and spot Sketch marked at

Ex.P.5 and Ex.P.6 prepared at the scene of occurrence

corroborate Ex.P.1 and Ex.P.2 respectively. Inquest

report and PM report marked at Ex.P.7 and Ex.P.8

respectively. After investigation of the case the I.O. has

filed Charge sheet as per Ex.P.9 against the driver of

KSRTC Bus bearing reg. No.KA-06-F-683 by name

M.S.Vijayakumar S/o Siddaramappa, for the offences

punishable U/Sec 279, 304(A) ofIPCand Sec 134(a) &(b), Sec 187 ofM.V. Act.13.   On the other hand respondent has denied

the manner of the accident as alleged in the petition

and has specifically        contended that   accident in

question has taken place due to wrongful act on the

part of rider/pillion rider of TVS Moped. In order to

substantiate such defence, this respondent examined

its Driver by name Vijayakumar as R.W.1 who in his

affidavit evidence has reiterated similar to written

statement averments. He has been cross-examined by

the petitioners. However in the course of his cross-(SCCH-3)         10        MVC 5250/15examination he admits that Chargesheet is filed

against him, but he has not challenged the Police

records. Although he contends that he went to Police

station to lodge complaint against TVS rider but Police

have not received his complaint but R.W.1 has failed to

produce corroborative evidence in this regard. If at all

there was no negligence on the part of KSRTC bus

driver, there was no impediment for him to challenge

Police records or to produce reliable evidence before

the tribunal to substantiate his defence. But for the

reasons best known to him, he has not done so, which

in turn leads to an adverse inference against him that

there was negligence on his part in commission of

offence.   Moreover,   the    complainant   Sunil   S/o

Shivarama Nayak has been examined on behalf of

petitioners as P.W.2, who has deposed that he has

seen the accident in which Raghunatha Shetty died

because of the accident caused by the wrongful act on

the part of KSRTC bus driver. The evidence relied upon

by P.W.1 and P.W.2 have not been rebutted by the(SCCH-3)      11           MVC 5250/15respondent. Under such circumstances, the tribunal is

of the considered opinion that due to actionable

negligence act on the part of the driver of KSRTC Bus

bearing reg. No.KA-06-F-683. Accordingly I answered

Issue Nos.1 and 2 in Affirmative.14.   Issue No.3:-P.W.1 being wife of the deceased in her evidence

has stated that prior to the accident her husband was

hale and healthy, aged about 52 years, was working as

Manager in Chaithanya P.G. and earning a sum of

Rs.20,000-00 per month. Petitioners in order to

substantiate these contents have not produced any

documents. In the absence of materials on record, it is

very difficult to believe the income of the deceased as

stated in the claim petition. From the petition and PM

report at Ex.P.8 the age of the deceased is mentioned

as 52 years at the time of accident. Therefore, the age

of the deceased is considered as 52 years as on the

date of accident. So, considering the present life

condition and the age of the deceased if Rs.7,000-00(SCCH-3)             12               MVC 5250/15per month is considered as notional income of the

deceased it will meet the ends of justice. His yearly

income comes to Rs.84,000-00.15.    This Tribunal drawn its attention on the

principles laid down in Rajesh and Rajabir Singh

case for future prospects and drawn the Court

attention on the decision reported in 2013 ACJ 1403 in

between the Rajesh and others Vs. Rajabir Singh

and Others reads like thus;Quantum - Fatal accident - Principles of
  assessment       -     Future        prospects    -   Whether
  formula    for       increase    of     income    for   future
  prospects adopted for persons with permanent
  jobs in Sarla Verma's case, 2009 ACJ 1298 (SC),
  may also be applied to the persons who are self
  employed or were engaged on fixed wages - Held:yes; 50 per cent of actual income (after deduction
  of tax) for persons below 40 years; 30 per cent for
  age group of 40-50 years; 15 per cent for age
  group of 50-60 years; but no addition thereafter.16.    On careful perusal of the above said

decision, in the said decision their lordship held that(SCCH-3)     13              MVC 5250/15by virtue of Sarla Verma's case, 2009 ACJ 1298 (SC),

the   future    prospects   adopted   for    persons   with

permanent jobs, may also be applied to the persons

who are self employed or were engaged on fixed wages.

50 per cent of actual income (after deduction of tax) for

persons below 40 years; 30 per cent for age group of

40-50 years; 15 per cent for age group of 50-60 years;

but no addition thereafter.17.   In the instant case the deceased was died in

a road traffic accident. His age was 52 years at the

time of accident and the decision as stated above in

Rajesh's case is clear that the Tribunal has to

consider about future prospects even self-employed or

were engaged on fixed wages. Admittedly the deceased

falls under the age group of 50 to 60 years. So, if 15%

of the future prospects is taken into consideration it

comes to Rs.7,000 + 15% = Rs.8,050-00. Then annual

income comes to Rs.96,600-00. In the case on hand

petitioner No.2 is a daughter of the deceased and was

married, as such she will not be considered as(SCCH-3)         14         MVC 5250/15financial dependant of the deceased under the head

loss of dependency, only she is entitled for loss of love

and affection.So, by virtue of decision reported in

2009 ACJ 1298 in betweenSarla Verma Vs. Delhi

Transport      Corporationwhere    the    number   of

dependants 2 to 3, 1/3rd has to be deducted as his

personal and living expenses of the deceased. In the

instant case there are two dependants to the deceased.

So, 1/3rd has to be deducted towards his personal and

living expenses, so it comes to (96,600 - 32,200)

Rs.64,400-00.So, his age is taken into consideration

as   52    years,   as   perSarla    Verma   Vs.   Delhi

Corporation Limitedreported in ACJ 1298, the

multiplier applicable is 11. So, Rs.64,400 x 11 =

Rs.7,08,400-00 is granted towards loss of dependency

to the petitioners.18.    It is an admitted fact that, the petitioner

No.1 is the wife and petitioner Nos.2 and 3 are the

daughters of the deceased, they lost love and affection

of the deceased. So, it is just and necessary to grant(SCCH-3)      15             MVC 5250/15Rs.20,000-00 each under the head of loss of love and

affection. So, Rs.10,000-00 is awarded under the head

of loss of estate. So, Rs.20,000-00 is awarded under

the head of consortium. So, Rs.20,000-00 is granted

for transportation of dead body and funeral and

obsequies.Medical expenses:-19.   P.W.1 has stated that she has spent huge

amount towards medical expenses for her husband.

She   has    produced   Medical   bills   for   a   sum   of

Rs.23,590-00 to show that she has spent the said

amount towards medical treatment of the deceased

prior to his death. Though the learned counsel for

respondent disputed the medical bills produced by the

P.W.1, but nothing is placed on record to show that

the medical bills produced by petitioner are created or

fabricated in order to get the compensation. So, in the

absence of the materials on record, it is clear that the

medical bills produced by P.W.1 are relating to the

treatment taken by his deceased husband in a road(SCCH-3)        16            MVC 5250/15traffic accident. Thus, Rs.23,590-00 which is granted

to the petitioners for the above head.20. Thus the total award stands as follows:1.Loss of dependency                Rs.7,08,400-002.Loss of love and affection             60,000-003.Loss of consortium                     20,000-004.Loss of estate                         10,000-005.Transportation of dead                 20,000-00
      body and funeral expenses6.Medical expenses                       23,590-00
                                          Rs.8,41,990-0021.   With    regard   to    the    liability:-   While

discussing Issue No.1, this Tribunal has come to the

conclusion that the accident has taken place due to

wrongful act on the part of the driver of the KSRTC

Bus    bearing     Reg.   No.KA-06-F-683.       Under   such

circumstances,      respondent    being   the    owner-cum-

insurer of the offending vehicle is liable to pay

compensation to the petitioners with interest at 8%

p.a. from the date of petition till its realization.

Accordingly, Issue No.3 is answered as partly in the

Affirmative.(SCCH-3)    17           MVC 5250/1522.   Issue No.4: In view of my finding given on

Issue Nos.1 to 3, I proceed to pass the following:ORDER



     The petition filed U/Sec 166 ofM.V. Actas

against the respondent is partly allowed, with costs.The petitioners are entitled for compensation of

Rs.8,41,990-00 together with interest at the rate of

8% p.a. from the date of the claim petition till its

realization.Respondent is liable to pay compensation amount

to the petitioners and shall deposit the said amount

within two months from the date of this award.On deposit of the compensation amount together

with interest, Rs.30,000-00 is allotted to petitioner

No.2 and from the remaining amount, 70% is allotted

to the share of petitioner No.1 and 30% is allotted to

the share petitioner No.3, by way of apportionment of

compensation amount.(SCCH-3)           18                MVC 5250/15Out of the share amount of petitioner Nos.1

and 3, 40% of the amount shall be deposited in their

names in any nationalized or scheduled bank of their

choice for a period of three years and the remaining

60% shall be released to them by means of A/c payee

cheque on proper identification. However, they are at

liberty to withdraw the periodical interest accrued on

their deposit amount from time to time.With regard to share of the petitioner No.2, entire

compensation amount shall be released to her by

means of a/c payee cheque on proper identification

without any further proceedings.Advocate fee is fixed at Rs.1,000-00.

       Draw award accordingly.(Dictated to the Stenographer, transcript thereof, corrected by me and then
pronounced in the open court on this the 07th day of April 2017)




                                  (GOMATI RAGHAVENDRA)
                               VII Addl. Judge & XXXII ACMM,
                                          Bengaluru.(SCCH-3)      19           MVC 5250/15ANNEXURE



List of witnesses examined for the petitioners:P.W.1     Leela Shetty
P.W.2     Sunil.M.



List of documents        marked   on   behalf   of   the
petitioners:


Ex.P.1     Copy of Complaint
Ex.P.2     Copy of FIR
Ex.P.3     Crime report
Ex.P.4     Police intimation
Ex.P.5     Copy of spot Mahazar
Ex.P.6     Copy of spot Sketch
Ex.P.7     Copy of Inquest report
Ex.P.8     Copy of PM report
Ex.P.9     Copy of Charge sheet
Ex.P.10    Medical bills (2 in Nos.)
Ex.P.11    Death certificate
Ex.P.12    Notarized copy of Ration card
Ex.P.13    Notarized copy of Voter ID card of
           petitioner No.1
Ex.P.14    Notarized copy of Aadhaar card of
           petitioner No.1
Ex.P.15    Notarized copy of Voter ID card of
           petitioner No.2
Ex.P.16    Notarized copy of Driving licence of P.W.2(SCCH-3)     20          MVC 5250/15List of witnesses examined for the Respondents:R.W.1     Vijayakumar


List of documents     marked   on   behalf   of   the
Respondents:


          -Nil-




                         (GOMATI RAGHAVENDRA)
                      VII Addl. Judge & XXXII ACMM,
                                 Bengaluru.