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Judgment
N. Ananda, J.—MFA No. 7827 of 2012 is filed by the Insurance Company to reduce the compensation awarded by the Tribunal on the ground that the deceased was also guilty of contributory negligence. MFA No. 6076 of 2012 is filed by the claimants for enhancement of compensation awarded by the Tribunal.
The Insurance Company has not disputed its liability. The Insurance Company sought for reduction of compensation on the ground that the deceased was guilty of contributory negligence and the Tribunal should have reduced the compensation proportionate to contributory negligence of the deceased.
I have heard Sri R. Jayaprakash, learned Counsel for the Insurance Company and Sri Ramachandra Naik, learned Counsel for the claimants.
In view of the rival contentions urged by the parties, the following points arise for my consideration:
(1) Whether the deceased was guilty of contributory negligence? If so, to what extent?
(2) Whether the claimants are entitled to enhancement of compensation?
It is not in dispute that the deceased was riding his motorcycle at the time of accident, which took place at 7.45 p.m. on 17-8-2010 on the road between Chandrappa Circle and Chikkanahalli, in front of Indian Space Research Organisation Company compound within the jurisdiction of Tavarakere Police Station. It is also not in dispute that the tractor and trailor involved in accident had been parked on the left side of road and the deceased had dashed his motorcycle against the trailor. The evidence on record does not disclose that the driver of tractor and trailor had taken steps to indicate the presence of parked tractor and trailor on the road.
As per evidence on record, one Gundappa was the pillion rider. The claimants have not examined Gundappa. The Insurance Company has not examined the driver of tractor and trailor to prove that he had taken necessary precautions to show the existence of parked tractor and trailor on the road. If the deceased had driven the motorcycle at reasonable speed, he would have noticed the tractor and trailor and avoided the accident. Therefore, there was contributory negligence on the part of the deceased. The major factor which had caused the accident was the parking of tractor and trailor on the road without any indication. Therefore, I hold that the deceased and the driver of tractor were guilty of contributory negligence in the ratio 20:80.
The claimant 1 is the wife of deceased. Claimants 2 and 4 are the minor children and claimant 3 is the mother of deceased. There is no satisfactory evidence in proof of the income of deceased but the fact remains that the deceased was self-employed. The Tribunal had determined the income of the deceased at Rs. 4,000/- p.m. which cannot be treated as excessive. The deceased was aged about 36 years. In view of the judgment of the Hon''ble Supreme Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, . 50% of income has to be added towards loss of future prospects. In the case on hand, the deceased was self-employed. Therefore, after adding 50% of the income towards loss of future prospects, the monthly income would be Rs. 6,000/- and the annual income would be Rs. 72,000/-. After deducting 1/4th of the same towards living expenditure of deceased (as the dependants are 4 in number), annual loss of dependency would be Rs. 54,000/- and capitalised loss of dependency would be Rs. 8,10,000/- ( Rs. 54,000/- x 15).
In view of the judgment of the Hon''ble Supreme Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, , the 1st claimant-wife of the deceased is entitled to compensation of Rs. 1,00,000/- towards loss of consortium, Rs. 25,000/- towards funeral expenses and Rs. 20,000/- towards loss of estate. The claimants are entitled to total compensation of Rs. 9,55,000/-. In the discussion made supra, I have held that deceased was guilty of contributory negligence to the extent of 20%. Therefore, a sum of Rs. 1,91,000/- proportionate to the negligence contributed by the deceased is deducted from the total compensation of Rs. 9,55,000/-. Thus, claimants are entitled to compensation of Rs. 7,64,000/-.
In the result, I pass the following:
ORDER
MFA No. 7827 of 2012 filed by the Insurance Company is dismissed.
MFA No. 6076 of 2012 filed by the claimants is accepted in part. The impugned award is modified. Compensation of Rs. 5,70,000/- awarded by the Tribunal is enhanced to Rs. 7,64,000/-.
The rest of the impugned award as it relates to rate of interest, period of accrual of interest is confirmed. Out of the compensation awarded in terms of this judgment, 75% of compensation shall be invested in the names of claimants 3 and 4 in equal proportion, in Fixed Deposit in any Nationalised Bank till they attain the age of majority. Their mother and natural guardian (1st claimant) shall be authorised to draw the periodical interest.
20% of compensation shall be invested in the names of claimants 1 and 4 in equal proportion, in Fixed Deposit in any Nationalised Bank. Claimants 1 and 4 shall be authorised to draw the periodical interest.
The remaining 5% of the compensation along with proportionate interest shall be apportioned equally and be paid to claimants 1 and 4.
The amount deposited by the Insurance Company shall be transferred to the Tribunal.