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Judgment
K.L. Manjunath, J.—These two appeals arise out of the Judgment & award passed by the MACT, Bangalore, dated 2nd November, 2009 in MVC No. 8372/2005.
MFA. No. 10646 of 2010 is filed by the claimant being not satisfied with the compensation awarded to her. MFA. No. 3735/2010 is filed by the Insurance Company challenging the liability saddled on the appellant-Insurance Company contending that the driver of the insured vehicle was in no way responsible for the cause of the accident and the contributory negligence attributed to him to an extent of 30% has to be set aside.
We heard the learned counsel appearing for the parties.
On 8-2-2004 the claimant was proceeding to Bangalore on Kolar bye-pass road on a Tata Indigo car bearing No. TN 01 V 7858 which was being driven by her son Girish Wadhwa. Her son who was driving the car in order to overtake the lorry crossed the middle line on National Highway No. 4 and dashed against an oncoming car bearing No. KA 05 TC 15/03 which was proceeding from Bangalore towards Kolar. In the accident the claimant''s son Girish Wadhwa died and other inmates were injured. Therefore, the claim petition was lodged against the driver of the car bearing No. KA 05 TC 15/03 and also against the owner of the car bearing No. TN 01 V 7858 and their respective insurers. The tribunal considering the evidence let-in by the parties and based on the police report held that the accident occurred due to the rash and negligent driving of the vehicle by claimant''s son. However, the negligence was apportioned equally holding that the accident occurred due to the contributory negligence of both the vehicles. The tribunal also awarded compensation of Rs. 4,10,000/-. Therefore, these appeals are filed.
According to Mr. Hegde, the learned counsel for the appellant-Insurance Company the accident did not occur due to the rash and negligent driving of the driver of the vehicle bearing No. TN KA 05 TC 15/03. Because the driver of the said vehicle was proceeding from Bangalore towards Chennai. The vehicle was kept on extreme left side. According to him, on account of the rash and negligent driving by the claimant''s son Girish Wadhwa in order to overtake the lorry which was proceeding ahead of him took his vehicle suddenly to his right side and dashed against on oncoming vehicle. The police have filed a charge sheet against the deceased. Therefore, he contends that the liability saddled on him has to be set aside. He further contends that the compensation awarded on all heads requires to be confirmed since the tribunal considering the evidence has rightly awarded the compensation of Rs. 4,10,000/-.
Per contra, the learned counsel appearing for the claimants and the Insurance Company Advocate of the vehicle bearing No. TN 01 V 7858 contends that the accident occurred due to the rash and negligent driving of the car bearing No. KA 05 TC 15/03 and the liability has to be saddled on the owner of the said vehicle and the insured. It is further contended by the claimant''s counsel that the compensation needs to be enhanced.
Having heard the learned counsel appearing for the parties we have to consider the following two points in these appeals:--
"1) Whether the liability saddled on both the vehicles in equal proportions require to be set aside or confirmed or modified ?
2) Whether the compensation awarded by the tribunal needs to be enhanced?"
So far as Point No. 1 is concerned, we have seen the records. Admittedly both the vehicles were proceeding in the opposite direction. The vehicles were proceeding on National High way. The width of the asphalted portion is 24 feet on the spot. The charge sheet is registered against the appellant''s son who was driving his car.
The sketch is not produced by the parties. However, they have relied upon the spot mahazar which is marked as Ex. P-2. On perusal of Ex. P-2, it is clear that both the vehicles were proceeding in the opposite direction. The accident has taken place on account of the appellant''s son crossing his car from the road median and further taking his vehicle to his right and as a such we cannot find fault with the driver of the car. But the question is whether the driver of the car bearing No. KA 05 TC 15/03 was also responsible for the cause of the accident or not is required to be looked into. On perusal of Ex. P-2, spot Mahazar, we are of the view that though the width of the road is 24 feet, on both the sides there is mud portion. The accident has taken place due to the claimant''s son crossing the road median, but unfortunately for the reasons best known to the owner and the Insurance Company of the car bearing No. No. KA 05 TC 15/03 the driver has not been examined. If the driver had been examined, he could have stated whether it was possible for him to avoid the accident. In such circumstances, we are of the view that the finding of the tribunal on the question of contributory negligence has to be affirmed. However, the ratio of contributory negligence has to be reduced from 50% to 25%. Accordingly, we hold that the owner and the Insurance Company of car bearing No. KA 05 TC 15/03 is liable to satisfy the award to an extent of 25%. Accordingly, we answer the same.
So far as Point No. 2 is concerned we have seen the entire evidence. On perusal of the same, it is seen that the claimant has not stated in the claim petition that what is her income. As on the date of the accident she was aged about 54 years. She is the only a housewife and she has no independent income of her own. Therefore, we are of the view that we have to consider the actual disability caused to her on account of the accident which may affect her day today life. The tribunal for the reasons best known to it has not awarded the same. Since the disability and loss of amenities have not been properly considered the disability caused to her it would come in her day to day affairs we are inclined to awarded a sum of Rs. 1,50,000/- under the aforesaid head, in addition to what has been awarded. It has come in the evidence that the claimant is a native of Chennai. She was in the hospital in Bangalore, for more than one month and thereafter she has also taken treatment at Chennai. During her hospitalization the claimant and her relatives were forced to stay in Bangalore for more than one month. Therefore we are inclined to award a sum of Rs. 50,000/-under the head attendant charges, conveyance and nourishment. Thus in all the claimant is entitled to Rs. 6,10,000/- with interest at 9% from the date of the petition till the date of payment.
In the result, MFA No. 10646/2010 and MFA No. 3735/2010 are allowed in-part. The Judgment & award passed in MVC No. 8372/2005 is modified holding that it is the owner and M/s. New India Assurance Company Ltd., shall satisfy the award to an extent of 25% with interest at 6% from the date of the petition till the date of payment. The compensation awarded by the tribunal is enhanced from Rs. 4,10,000/- to Rs. 6,10,000/- with interest at 6% per annum from the date of petition till the date of payment.
The entire amount is ordered to be released to the claimant.