IN THE COURT OF THE 1st ADDL. DISTRICT JUDGE, ONGOLE M.V.O.P.No.384/2012 Veerepalli Koteswara Rao and others
…..Petitioners
Vs Shaik Fazulla and others
…..Respondents
WRITTEN ARGUMENTS FILED ON BEHALF OF THE PETITIONERS The case of the petitioners is that on 18-11-2011 the deceased got transfer orders from Syndicate Bank, Yemgal, Kolar District, Karnataka State to Syndicate Bank, Atmakur Branch, S.P.S.R.Nellore District, A.P., and on 26-11-2011 he relived from his duties at Syndicate Bank, Yemgal, Kolar District, Karnataka State and in that process the deceased was coming to Ongole along with his household articles in an auto from Yemgal, Kolar District and in that process while so, on 29-11-2011 while the deceased was coming from Yemgal, Karnataka State in a TATA Ace Auto bearing No.KA 07 9393 with his household articles and at about 3-45 a.m., when the auto reached south by-pass road, Ongole and when the auto was slow down as there were speed breakers, the driver of the lorry bearing No.AP 07 TB 6267came from behind with a high speed, in rash and negligent manner hit the auto, in the result the deceased who sat in the cabin received severe head injury and also all over his body and immediately after the accident the deceased
was
shifted
to
Sangamitra
Hospital,
Ongole
for
treatment and later shifted to Vatsalya Hospital, Ongole wherein he was treated for his head injury and he died on 05-12-2011 while undergoing treatment.
The accident was occurred solely due to
rash and negligent driving of the Lorry bearing No.AP 07 TB 6267 by the 1st respondent, during the course of his employment under the 2nd respondent, who is the owner of the crime vehicle and the same was insured with the 3 rd respondent. After the accident a case was registered in Cr.No.385/2011 U/s.337 IPC of Ongole Tq P.S., and investigated the case and later altered the section of law 1
from U/s.337 IPC to U/s.304-A IPC and later the Police filed Charge Sheet in C.C.No.02/2012 before the III A.M.M Court, Ongole against the 1st respondent. Prior to the date of accident, the deceased had been worked as Probationary Assistant Manager in Syndicate Bank, Yemgal, Kolar District, Karnataka State and drawing an amount of Rs.24,182/- as his monthly salary and if he had been alive he may reach a good and top position in future as he got employment at the age of 25 years.
The petitioners 1 & 2 are the parents and 3 rd
petitioner is the younger brother and they are suffering with loss of love and affection due to immature death of the deceased and they are suffering with starvation after the death of the deceased and also suffering with lot of mental agony.
The petitioners lost
their bread winner and also sustained loss of future earnings of the deceased. The accident occurred due to rash and negligent driving of the driver of Lorry bearing No.AP 07 TB 6267. R-1 is the driver of the Lorry bearing No.AP 07 TB 6267, R-2 is the owner of the said Lorry bearing No.AP 07 TB 6267 and R-3 is the insurer of Lorry bearing No.AP 07 TB 6267 and hence all the respondents are jointly and severally liable to pay the compensation claimed by the petitioners. Veerepalli Rama Devi, who is mother of the deceased, was examined as PW-1 and she filed documents on behalf of the petitioners, which were marked as Exhibits A1 to A17. Exhibit-A1:-Certified copy of F.I.R. in Cr.No.384/2011 U/sec.337 I.P.C., of Ongole Tq P.S., Prakasam District, Exhibit-A2:-Certified copy of Alter Memo of F.I.R. in Cr.No.384/2011 U/sec.304-A I.P.C., of Ongole Tq P.S., Prakasam District, Exhibit-A3:-Certified copy of Inquest Report relating to the deceased Veerepalli Hareesh, Exhibit-A4:-Certified copy of P.M. Certificate relating to the deceased Veerepalli Hareesh,
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Exhibit-A5:-Certified copy of Charge Sheet in C.C.02/12 on the file of III A.M.M. Court, Ongole, Exhibit-A6:-Certified copy of M.V.I Report, Exhibit-A7:-Certified copy of Rough Sketch, Exhibit-A8:-Family Membership Certificate issued by Tahsildar, Ongole, Exhibit-A9:-Attested copy of 10th class marks list relating to deceased, Exhibit-A10:-Attested copy of Original Degree of B.Tech (ECE) relating to the deceased, Exhibit-A11:-Course Completion Certificate issued by S.V.V.S.N.Engineering College, Ongole, relating to deceased, Exhibit-A12:-Attested copy of PAN Card bearing No.AHIPV3321N relating to the deceased, Exhibit-A13:-Appointment Syndicate Bangalore, Exhibit-A14:-Joining deceased,
Letter,
Report,
dt.07-01-2010 Bank,
dt.15-02-2010
issued
relating
to
by
the
Exhibit-A15:-Memorandum of Transfer Certificate, dt.18-11-2011 relating to the deceased issued by Syndicate Bank, Bangalore, Exhibit-A16:-Memorandum of Relieve letter, dt.26-11-2011 relating to the deceased issued by Syndicate Bank, Vemgal Branch, Kolar Dist, Karnataka State, Exhibit-A17:-Income Tax Return for the Assessment Year 20112012 relating to the deceased. Exhibit-X1 to X4 was marked by the advocate commissioner by time of examination of PW-3 on behalf of the petitioners. Kolar Siva Kumar Harish S/o.Siva Kumar, resident of Vadiyal Village and Post, Kolar District, Karnataka State, who is the eyewitness to the above said accident, was examined as PW-2 and the police examined him as LW-2 in the Charge Sheet.
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One B.R.Mamatha, Assistant Manager of Syndicate Bank, Yemgal Branch, Kolar District, Karnataka State was examined as PW-3 on behalf of the petitioners, as per evidence of PW-3, the deceased got his last pay scale for the month of November, 2011 is Rs.24,182-=65 and his net salary is Rs.19,996=65 and Rs.600/- will be increased per year and further she states that if the deceased alive, he will work up to 60 years of his age and he will get promotion up to General Manager and at present the General Manager salary is Rs.1,50,000/- per month and as per her knowledge the deceased is an intelligent person and after completion of probationary period, the deceased will be get Rs.34,500/- per month towards his salary and his probationary period will be completed on date 1-2-2012. The respondents filed counter and the 3rd respondent vehemently contested that at the time of accident, the 1 st respondent not having valid D.L., to drive the crime vehicle and also the policy was not in force, and the compensation is very high and excessive and interest is usurious. On these the petitioners established their case very clearly by all their exhibits A1 to A17. The 3 rd respondent took a nominal contest and could not disprove the case of the petitioners.
No
evidence adduced on behalf of the 3 rd respondent, except filing Insurance Policy. Regarding to Quantum of Compensation, the petitioners are herewith filing the following judgments, pronounced by the Hon’ble High Court of A.P., and Hon’ble Supreme Court of India. (1).2013 ACJ 1441 (SC) C.A.No.5513/2012 arising out of SLP (C).No.6367/2012, decided on 03-05-2013.
Vimal Kanwar and others Vs.
Kishore Dan and others
Quantum –Fatal Accident – Deceased aged 28½, Assistant Engineer in State P.W.D., drawing Rs.8,920/- p.m., - Claimants: Widow, minor daughter and mother, aged 55 – Tribunal’s award of Rs.14,93,700/- upheld by High Court – Apex Court taking into 4
consideration future prospects assessed income at Rs.18,000/p.m., dependency at Rs.12,000/- p.m., adopted multiplier of 17 and allowed Rs.24,48,000/- plus Rs.1,00,000/- for loss of consortium and loss to estate, Rs.2,00,000/- to daughter and Rs.1,00,000/- each to widow and mother for loss of love and affection and Rs.25,000/- for funeral expenses – Award of Rs.14,93,700/- enhanced to Rs.29,73,000/-. According to the above said decision, the Hon’ble Supreme Court taking the earnings of the deceased as doubled i.e., Rs.9,000/- X 2=Rs.18,000/- and applied 1/3rd deductions towards personal expenses, as the dependants are 3 members.
Thereby the
“actual salary” will come to Rs.18,000=00 - Rs.6,000=00 = Rs.12,000=00 X 12 = Rs.1,44,000=00 per annum and applied multiplier 17 X Rs.1,44,000/- = Rs.24,48,000/- and also awarded Rs.1,00,000/- for loss of consortium and loss to estate, Rs.2,00,000/- to daughter and Rs.1,00,000/- each to widow and mother for loss of love and affection and Rs.25,000/- for funeral expenses and in total is Rs.29,73,000. According to the above said decision, the deceased herein is aged about 26 years, by the time of accident and according to IIschedule of M.V.Act, the age factor of the deceased is 18 may be applied. The deceased is a Prob. Assistant Manager in Syndicate Bank, Yemgal, Kolar District and drawing an amount of Rs.24,182/per month and according to the above said decision, the deceased herein will get Rs.48,364/- per month as future income. (2).2014 ACJ 2613 (AP) M.A.C.M.A.No.2158/2013, decided on 05-12-2013.
N.Surender Rao and others Vs. B.Swamy and another Quantum – Fatal accident – Principles of assessment – Multiplier – Choice of – Deceased a bachelor – Claimants: Parents and sister – Whether multiplier based on the age of the deceased be applied – Held: Yes. (2012 ACJ 2002 (SC) followed).
(Para-33). 5
According to the above said decision, the law declared by the Apex Court and a binding precedent and if that is applied to the present facts of the case, multiplier applicable to the age group of the deceased alone shall be taken for adopting appropriate multiplier for arriving at compensation o be paid to the dependants of the deceased bachelor. Hence the age of the deceased alone shall be taken for adopting multiplier in view of the law as on today, since earlier judgments are not binding precedents but they only consist of a ration decidendi, as per Amrit Bhanu Shali, 2012 ACJ 2002 (SC) (3).2015 ACJ 594 (SC) C.A.No.347/2015, decided on 13-1-2015.
Kanhsingh and another Vs. Tukaram and others Quantum – Fatal accident – Principles of assessment – Future Prospects – Deceased aged 27, Manager in Bank, drawing Rs.15,155/- p.m., - Whether future increase in income of the deceased be taken into consideration while assessing dependency of the claimants – Held: Yes; there were definite chances of his future promotion and increase in salary; allowed 50 per cent towards future prospects. (2013 AC 1441 (SC) followed). (Para10).
Quantum – Fatal accident – Deceased a bachelor aged 27, Manager in Bank, drawing Rs.15,155/- p.m., - Claimants: Parents – Claims Tribunal awarded Rs.12,10,014/- - High Court further allowed Rs.2,00,000/- and awarded Rs.14,10,014/- - Apex Court taking the income as Rs.15,155/- p.m., i.e., Rs.1,81,860/- p.a., added 50 per cent towards future prospects, deducted 10 per cent towards income tax and 1/3rd towards personal expenses, assessed dependency at Rs.1,63,674/- p.a., adopted multiplier of 11 and allowed Rs.18,00,414/- plus Rs.1,00,000/- towards loss of love and affection, Rs.25,000/- for funeral expenses and Rs.5,00,190/towards medical expenses – Awarded of Rs.14,10,014/- enhanced to Rs.24,25,604/(Para-10, 11, 12, 13, 14).
With regard to the quantum of compensation, the petitioners claimed Rs.25,00,000/- only for the death of their breadwinner,
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who had been worked as Probationary Assistant Manager.
The
rash and negligence of the Lorry was amply proved by all the documents and the manner of accident itself speaks volumes of rash and negligence of the 1st respondent. Therefore all the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners and the petitioners are fully entitled for claiming above compensation. Be pleased to Consider Ongole, Dt.05-06-2015.
Advocate for Petitioners
V.V.P.K Petitioners
IN THE COURT OF THE 1st ADDL. DISTRICT JUDGE :: ONGOLE
M.V.O.P.No.384/2012
WRITTEN ARGUMENTS FILED ON BEHALF OF THE PETITIONERS
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FILED BY:Sri. Y.SUNIL KUMAR, Sri. V.V.PAVAN KUMAR, ADVOCATES, ONGOLE.
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