M/S. Icici Lombard General vs Ghouse Peer & Others

H.P. Sandesh, J

These two appeals are filed by the Insurance Company and the claimants respectively challenging the judgment and award passed in

M.V.C.No.4786/2013 dated 05.12.2014 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru questioning the

negligence and quantum of compensation.

The factual matrix of the case is that on 22.08.2018 at about 8.30 p.m., deceased G. Khashim was an occupant of the bus bearing No.KA-52-1389

from Nelamangala towards Bangalore on NH-4 road. The driver of the bus drove the bus in a rash and negligent manner endangering to human life

and caused the accident in zigzag manner. As a result, the deceased sustained severe head injury and succumbed on the spot due to the injuries near

the toll plaza toll. The claimants have contended that they have spent Rs.80,000/- towards funeral expenses and he was earning Rs.12,000/- per month

as Tailor and was contributing the income to his family.

The Insurance Company has filed the written statement denying the contentions raised in the claim petition and denied the negligence on the part of

the driver of the bus. It is contended that there is no negligence on the part of the driver of the bus and the bus was moving in slow manner in the toll

plaza, at that time, the deceased put his neck outside the bus without following traffic rules and regulations. Hence, the deceased himself is solely

responsible for the unfortunate accident and they are not liable to pay any compensation.

The claimants, in order to substantiate their claim have examined two witnesses as P.Ws.1 and 2 and got marked the documents Exs.P1 to P15.

P.W.2 is an eye witness according to the claimants. The Insurance Company examined the driver of the bus as R.W.1 and the officer of the

Insurance Company as R.W.2. and got marked the document, Ex.R1-policy.

The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition in part granting compensation of

Rs.8,15,200/- with interest at 6% per annum. Hence, the present appeals are filed by the Insurance Company as well as the claimants.

Learned counsel for the Insurance Company in M.F.A.No.2421/2015 would contend that the Tribunal has failed to consider the evidence of R.W.1,

who has been examined before the Tribunal to prove the negligence on the part of the deceased himself, who put his head outside the bus while the

bus was passing in the toll plaza. The Tribunal failed to take note of the negligence on the part of the deceased and committed an error in fastening the

liability on the Insurance Company in entirety. The other contention raised by the learned counsel for the Insurance Company is that the multiplier

applied by the Tribunal as 18 is not correct. Hence, it requires interference of this Court.

Per contra, learned counsel appearing for the claimants in the appeal in M.F.A.No.1562/2015 would contend that the Tribunal has committed an

error in taking the income of the deceased as Rs.6,000/- per month, though the accident is of the year 2013. The Tribunal has also committed an error

in adding 15% of the income towards future prospects and ought to have added 50%. Hence, it requires interference of this Court.

Having heard the arguments of respective counsel and also on perusal of the material available on record, the points that arise for consideration of

this Court are:

(i) Whether the Tribunal has committed an error in not taking the negligence on the part of the deceased and it requires interference of this Court?

(ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?

(iii) What order? Point No.(i)

Having heard the respective counsel and also on perusal of the records, it is clear that police have registered the case against the driver of the bus.

On perusal of the place of the accident, it is also not in dispute that the accident has taken place in toll plaza as shown in Ex.P4-sketch. The sketch is

relied upon by the claimants themselves. On perusal of the IMV report also, no damage was noticed on the vehicle due to the accident. Hence, it is

clear that there is no damage to the bus and the bus was passing near the toll plaza and the accident has taken place just 10 ft. distance to the Toll

No.13. Though P.W.2 claims that he was an eye witness to the accident, the accident has occurred due to the negligence on the part of the deceased

also. It is not in dispute that the width of the road is 12 ft. and before entering toll plaza, there is a hump and the bus was proceeding further after

making payment at toll plaza. When the vehicle was proceeding in the toll plaza, the deceased, ought not to have put his head outside the bus, that too,

particularly, when there is a toll booth for collection of the toll charges. R.W.1 also in his evidence categorically deposed that when the deceased put

his head outside the bus, the accident has taken place.

Though the learned counsel appearing for the claimants vehemently contend that the negligence was exclusively on the part of the driver of the

bus, the said contention cannot be accepted for the reason that the vehicle was passing through the toll plaza and the head of the deceased came in

contact with the toll plaza which was outside the bus. Hence, there is negligence on the part of the deceased and also the driver of the bus and the

deceased ought not to have put his head outside the bus when the bus was passing through the toll plaza. However, the Tribunal has failed to take note

of this aspect of the matter and though the R.W.1 claims that the accident was exclusively on account of the negligence on the part of the deceased

himself, the same also cannot be accepted for the reason that the driver of the bus also should be cautious enough to drive the vehicle within the space

of 12 ft. and Ex.P4- sketch indicates the same. The contention that while passing gave instructions cannot be accepted. Hence, the Tribunal ought to

have taken the negligence on the part of the deceased also since, there is no visible damages noticed on the vehicle and the bus has not touched any

portion of the toll plaza. Therefore, it is appropriate to take negligence on the part of the deceased at 20%. Having considered the evidence available

on record particularly, the evidence of P.W.2 and also R.W.1, the negligence on the part of the deceased can be taken to the tune of 20% and the

driver of the bus to the tune of 80%. Hence, point No.(i) is answered accordingly.

Point No.(ii)

The claimants claim that the deceased was working as Tailor and in order to substantiate the fact that he was working as a Tailor, no document

has been placed before the Court. The accident has taken place in the year 2013 and in the absence of any documentary proof with regard to the

income, the Tribunal ought to have taken notional income and the same would be Rs.8,000/- per month. The Tribunal has committed an error in taking

the income of the deceased as Rs.6,000/- per month and also failed to add 40% towards future prospects since, the deceased was not having any

secured job and permanent income. If it is calculated, it comes to Rs.3,200/- (8,000x40/100). After adding the same, the monthly income of the

deceased would be Rs.11,200/- (8,000+3,200). The deceased is a bachelor and hence, 50% is to be deducted towards personal expenses. After

deducting the same, the monthly income of the deceased would be Rs.5,600/- (11,200x50/100) per month. The relevant multiplier applicable to the

case on hand is 18. Taking the income of the deceased as Rs.5,600/-, the loss of dependency comes to Rs.12,09,600/- (5,600x12x18). The claimants

are also entitled for a sum of Rs.30,000/- towards conventional heads in view of the principles laid down in Pranay Sethi's case. After adding the

same, the compensation comes to Rs.12,39,600/-. Since, negligence on the part of the deceased is taken at 20%, the same is to be deducted from

Rs.12,39,600/-. If the same is deducted, it comes to Rs.9,91,680/- (12,39,600-2,47,920). Point No.(iii)

In view of the discussions made above, I proceed to pass the following:

ORDER

(i) The appears are allowed in part.

(ii) The judgment and award of the Tribunal passed in M.V.C.No.4786/2013 dated 05.12.2014 on the file of the Motor Accident Claims Tribunal,

Court of Small Causes, Bengaluru is modified granting compensation of Rs.9,91,680/- as against Rs.8,15,200/- with interest at 6% per annum.

(iii) The respondent-insurance company is directed to deposit the amount within six weeks from today.

(iv) The Registry is directed to transmit the amount in deposit made by the Insurance Company to the Tribunal forthwith.

(v) The Registry is directed to transmit the TCR to the concerned Tribunal forthwith.