Divisional Manager vs Riyazunnissa

,,,

These appeals are heard and disposed of together in view of the fact that both the appeals arise out of the same judgment rendered by the Tribunal.

MFA 7636/2015 is preferred by the appellants/claimants against the judgment and award dated 08.01.2015 passed by the Tribunal in MVC

No.570/2012 seeking enhancement of compensation awarded by the Tribunal as well as with a prayer to set aside the finding of the Tribunal fixing

30% negligence on the part of the driver of the autorickshaw bearing No.KA-30/4722 and thereby directing the Insurance Company to only deposit

70% of the compensation awarded with interest.,,,

MFA 3940/2015 is preferred by the Insurance Company against the judgment and award dated 08.01.2015 passed by the Tribunal in MVC

No.570/2012 fixing the negligence against the driver of the lorry at 70% when the driver of the autorickshaw was solely responsible for the accident,"

as well as the quantum of compensation awarded by the Tribunal.,,,

The factual matrix of the appeals is as under:,,,

It is stated in the claim petition that on 3.3.2012 at about 10.00 a.m., when the deceased Tajpeer S/o. Babasab was proceeding in an autorickshaw"

bearing Regn.No.KA-30/4722 towards Jail Circle from Durgigudi driven by its driver slowly and carefully, at that time, the first respondent in MFA"

7636/2015 / driver of the offending lorry bearing Regn.No.MH-19/Z-1598 had come from Nanjappa Hospital in a rash and negligent manner and

dashed the said auto in which the deceased was traveling. As a result, the deceased sustained multiple injuries on both legs, left hip bone, right and left"

fibula and fracture of malleolus bone of right foot and was treated at Nanjappa Hospital Shivamogga and thereafter at Wenlock Hospital, Mangalore"

and thereafter at Yenepoya Hospital, Mangalore, where he was treated as an in-patient till his death on 16.05.2012. Prior to the accident he was hale"

and healthy and was working in a private office as an Assistant and also doing other works and was earning Rs.15,000/- per month. His family"

members were wholly dependent on his income for their livelihood and due to his untimely death they having lost their bread earner of the family, filed"

a claim petition against the respondents seeking compensation.,,,

In pursuance of issuance of notice, the owner as well as driver of the offending lorry as well as owner and driver of the autorickshaw remained"

absent and were placed exparte. The petition was contested by the Insurer of the autorickshaw and insurer of the offending lorry. The Insurer of the

offending lorry contended that the driver of the lorry did not possess a valid driving licence and the owner of the said lorry did not possess valid

transport permit to ply the vehicle and further, the driver of the autorickshaw did not possess a valid driving licence. Further, that the deceased himself"

had driven the auto without any driving licence and the accident had occurred due to the negligence of the deceased himself. Hence, it was contended"

that he was not liable to pay any compensation.,,,

The Insurer of the autorickshaw though admitted that the said autorickshaw was insured with it, however, stated that the liability was subject to the"

terms and conditions of the policy. Further, he denied all the averments in the claim petition and sought for dismissal of the petition."

Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.1 got examined herself as"

PW.1 and got marked 435 documents as per Ex.P1 to P435. The Legal Officer of 3rd respondent — appellant in MFA 3940/2015 was examined as

RW1 and got marked documents as per Exhibits R1 to R8. The sixth respondent — Insurer of autorickshaw got marked the policy of the

autorickshaw as Ex.R4. The Tribunal after hearing the learned counsel for the parties, and on an evaluation of oral and documentary evidence on"

record, passed the impugned judgment awarding compensation of Rs.10,40,200/- with interest @ 6% p.a. from the date of petition till the date of"

deposit. However, Respondent No.3 — Insurer of the lorry was directed to deposit only 70% of the compensation amount along with interest. It is"

this judgment which is challenged in these appeals by the claimants seeking enhancement of compensation and praying to set aside the finding of the

Tribunal fixing the negligence against the driver of the autorickshaw at 30% and by the Insurer questioning the liability as well as the quantum, by"

urging various grounds.,,,

Learned counsel for the appellant in MFA No.3940/2015 - Insurer vehemently contends that the Tribunal committed an error in not noticing that the

insured vehicle did not possess permit to ply in Karnataka State as on the date of the accident. It was further contended that in fact the driver of the

autorickshaw was solely responsible for the accident and hence the Tribunal committed an error in fixing 70% negligence against the driver of the

lorry. Further, that the Tribunal erred in granting higher compensation under conventional heads and the same deserves to be scaled down by this"

Court. Hence, the learned counsel for the appellant in MFA 3940/2015 prays that his appeal be allowed and the Insurance Company be entirely"

exonerated of its liability to pay compensation.,,,

Learned counsel for the appellants in MFA 7636/2015 / claimants contends that the accident being of the year 2012, the Tribunal ought to have"

adopted the income of the deceased at Rs.7500/- per month in order to award compensation towards ‘Loss of dependency’. Whereas the

Tribunal has erred in taking his monthly income at just Rs.6,000/- and hence, contends that the same requires interference by this court. The learned"

counsel further contends that the Tribunal taking into consideration that fact that the deceased had left behind his wife and four children as his

dependants, ought to have awarded ‘filial compensation’ in respect of the children, which aspect has not been taken into consideration by the"

Tribunal.,,,

On these grounds, learned counsel for appellants prays for allowing the appeal and enhancing the compensation awarded by the Tribunal suitably."

Further, the learned counsel contends that the finding of the Tribunal in so far as fixing the negligence at 30% in respect of the driver of the"

autorickshaw is concerned, may be set aside and the Insurance Company be directed to pay the entire compensation awarded to the claimant instead"

of 70%.,,,

Refuting the contentions of the counsel for the claimants, the learned counsel for the Insurance Company — appellant in MFA No.3940/2015"

vehemently contends that the deceased Tajpeer driving the autorickshaw bearing Regn.No.KA-30-4722 rash and negligently, at the Jail Circle, without"

looking at the vehicles plying at the circle, moved negligently and dashed at the lorry which had already crossed 70% of the circle. As a consequence,"

the autorickshaw was caught in between the left front and back wheel of the lorry and the said autorickshaw though was badly damaged, the person"

arraigned as driver of the auto rickshaw had not sustained any injuries whereas the deceased was badly injured with multiple fractures and then died

in the hospital. Therefore, it must be inferred that the deceased was the one who was driving the autorickshaw but not Respondent No.4 in the claim"

petition. The Insurance Policy in respect of the said autorickshaw was a ‘Liability policy’ which did not cover the risk of such a driver — the

deceased and further, he did not have a driving licence, which is clear breach of the policy terms and conditions. Hence, the learned counsel for the"

Insurer contends that the Tribunal was justified in fixing the negligence on the part of the driver of the autorickshaw at 30%, which does not call for"

any interference.,,,

In the background of the contentions taken by learned counsel for the claimants - appellants in MFA 7636/2015 and the learned counsel for the

Particulars,"Compensation

awarded by

MACT","Compensation

enhanced by

this Court",Total

Loss of

dependency","7,56,000","3,85,728","11,41,728

Loss of

consortium","20,000",,

Loss of

estate","20,000",,

Loss of love

and affection","80,000",,

Transportati

on of dead

body &

funeral

expenses","25,000",,

Food,

nourishment

&

conveyance","25,000",,

Medical

expenses","1,14,200",Nil,"1,14,200

Parental

consortium

to Appellants

2, 3, 4 & 5 in

MFA

7636/2015",Nil,"1,60,000

(Rs.40,000/-

each)","1,60,000

TOTAL,"10,40,200","4,45,728","14,85,928