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Judgment
N. Ananda, J.—MFA4365/2012 is filed by the claimant for enhancement of compensation.
MFA 2533/2012 is filed by the insurance company for reduction of compensation.
I have heard Sri. Shripad V. Shastri, learned counsel for claimant and Sri. A.M. Venkatesh, learned counsel for insurance company.
The claim petition was filed under Section 163-A of the Motor Vehicles Act, 1988 for the death of deceased Bharath Lome by his father. It is not in dispute that claimant is the sole dependant of deceased.
The learned counsel for claimant would submit that the tribunal has awarded compensation of Rs. 1,75,000/- by treating the deceased as a non-earning member and taking his notional income at Rs. 15,000/-.
The learned counsel for insurance company would submit that accident took place due to absolute negligence of the rider of motorcycle; the contents of rough sketch (marked as Ex. P2) would reveal that deceased had ridden the motorcycle to its off side and dashed against the Lorry which was proceeding on its proper side. Therefore, the tribunal should have dismissed the claim petition though it was filed under Section 163-A of the Motor Vehicles Act.
The learned counsel for insurance company would submit that in view of law laid down by the Supreme Court in the case of National Insurance Company Ltd. Vs. Sinitha and Others, , the insurer or insurance company are not precluded from proving that claimant himself was guilty of rash and negligent driving either by adducing evidence or by depending on evidence adduced by claimants. The learned counsel would submit that the tribunal should have held that driver of Lorry and deceased (rider of motorcycle) were guilty of contributory negligence and should have apportioned contributory negligence in the ratio of 50:50.
It is true, in the aforestated decision the Supreme Court has held: in a claim petition under Section 163-A of the Motor Vehicles Act, the claimant is not bound to prove the negligence of driver of other vehicle involved in the accident however, the insured and insurer are not precluded from establishing that claimant was guilty of negligence/contributory negligence by adducing evidence or by depending on the evidence adduced by claimants.
In the case on hand, the rough sketch (marked as Ex. P2) would reveal that rider of motorcycle had marginally crossed the central median, the Lorry came from the opposite direction dashed against him. The final report was also filed against the deceased (rider of motorcycle).
It is true that deceased had marginally crossed the central median and he was not proceeding on the proper side of road. The driver of Lorry was driving the Lorry close to the central median though there was much space to his left hand side. The driver of Lorry who was in-charge of heavy vehicle owed greater responsibility to avoid accident.
Having regard to facts and circumstances of case and the manner in which accident had taken place, I hold the deceased and driver of Lorry were guilty of contributory negligence and apportion the contributory negligence in the ratio of 20:80 respectively. The deceased was aged about 20 years. The claimant has stated that deceased was studying in Second Year BBM however, he has not produced documentary evidence to substantiate the same. Having regard to age and ability of the deceased, his income is determined at Rs. 40,000/- per annum. The claimant is the only recognised dependant. Therefore, appropriate multiplier would be ''11''. Thus, capitalized loss of dependency would be Rs. 2,20,000/- (Rs. 20,000 x 11). In addition to this, claimant is entitled to compensation of Rs. 4,500/- under the conventional heads. Thus, claimant is entitled to total compensation of Rs. 2,24,500/-.
In the discussion made supra, I have held that deceased was guilty of contributory negligence to an extent of 20%. Therefore, claimant is entitled to compensation of Rs. 1,79,600/- (Rs. 2,24,500 x 80%). In the result, I pass the following:
ORDER
MFA 2533/2012 filed by the insurance company is dismissed.
MFA 4365/2012 filed by the claimant is accepted in part. The impugned award is modified by enhancing compensation of Rs. 1,75,000/- to Rs. 1,79,600/-. The rest of the impugned award is confirmed.
The amount deposited by insurance company shall be transferred to the tribunal.