AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Patil, J.—These two appeals by the Insurer and by the Claimants are arising out of the same judgment and award dated 06/04/2013, passed in MVC No. 6529/2010, by the VII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-3, Bangalore (SCCH-3), (hereinafter referred to as ''Tribunal'' for short).
The Tribunal, by its judgment and award has awarded a sum of Rs. 88,54,360/- under different heads with interest at 8% per annum from the date of petition till realization, as against the claim of the claimants for a sum of Rs. 1,35,25,000/-, on account of the death of the deceased Sri. Alvin Philip Mohandoss, in the road traffic accident.
Being aggrieved by the same, the Insurer has filed an appeal on the ground that, the compensation awarded by the Tribunal is on the higher side and disproportionate to the income of the deceased and that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the motorcycle and on the part of the driver of a private bus and the claimants have filed an appeal on the ground that the compensation awarded by the Tribunal is inadequate and it requires to be enhanced.
In brief, the facts of the case are:
"The claimant Nos. 1 and 2 are the wife and minor son of the deceased. They have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 21.7.2010 at about 10.15 a.m. deceased was proceeding in a Motor cycle bearing Reg. No. KA.03.EA.7765 from his residence towards Ashirvadham Circle and at that time, the driver of the Swift Car bearing No. KA.03.MK.9380 negligently parked the vehicle by the side of the road and without any signal opened the door, at that time, deceased who was proceeding on his bike from the backside of the car dashed to the door of the swift car. Due to which, he fell down on the road and at the same time, a private bus baring Reg. No. KA.07.9970 ran over the deceased, resulting severe head injuries and was declared brought dead in St. Philomina Hospital." 5. It is the further case of the claimants that, deceased was aged about 31 years, Software Engineer, employed in IBM India Private Limited and drawing the gross salary of Rs. 9,00,000/- per annum and looking after the welfare of the family. On account of his untimely death, claimants have suffered financial loss as they have lost the earning member in the family, apart from mental shock and agony.
The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 88,54,360/- under different heads with interest at 8% p.a., from the date of petition till realization.
We have heard learned counsel appearing for the Insurer and learned counsel appearing for claimants at considerable length of time.
Learned counsel appearing for the Insurer Sri. K. Suryanarayana Rao, submitted that, from the contents of Ex. P6-Spot sketch, Ex. P7-Spot Panchanama and Ex. P8-inquest report, it is crystal clear that there is an element of contributory negligence on the part of the deceased, rider of the motor cycle, but this aspect of the matter has not been considered or looked into by the Tribunal and the reasoning given for fixing entire negligence on the part of the driver of the car which was insured with it cannot be sustained and is liable to be modified. Further, he submitted that, the Police Authorities, after due investigation have filed the charge sheet against the driver of the car as well as the driver of the bus, but this aspect has not been considered by the Tribunal while fixing negligence on the part of the driver of the car solely on the ground that, the driver of the car has admitted that, at the time of the accident the right side door of the car was opened, but that is not a ground for fixing entire negligence on the part of the driver of the car. Further, he submits that the compensation awarded by the Tribunal is on the higher side and is liable to be reduced reasonably. Therefore, he submitted that the impugned judgment and award is liable to be modified by fixing contributory negligence on the part of the deceased, rider of the motor cycle and also on the part of the driver of the bus.
Learned counsel appearing for claimants, Sri. Christopher E. for J. Hudson Samuel and Partners, has submitted that the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and conventional heads and what is awarded is inadequate and it requires to be enhanced. To substantiate the said submission, he placed reliance on the judgment of the Apex Court and submitted that, deceased was aged about 31 years, Software Engineer by profession having excellent academic career, working in IBM and on account of his untimely death, claimants have suffered financial loss apart from mental shock and agony and therefore, the Tribunal ought to have added another 50% towards future prospects instead of 30% as done by it. Therefore, he submitted that the impugned judgment and award is liable to be modified by enhancing the compensation reasonably.
After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:
"(i) Whether the Tribunal has justified in fixing entire negligence on the part of the driver of the car or does it call for interference?
(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
Re. Point No. 1:
The occurrence of the accident and the resultant death of the deceased are not in dispute. The dependants are his wife and son. The Tribunal, after due consideration of the oral evidence of RWs-1 to 3 coupled with the documentary evidence produced at Ex. P6-Spot sketch and Ex. P7-Spot panchanama has specifically recorded the finding of fact that, R.W. 1, the driver of the car has admitted that there was no sufficient space, but contents of Ex. P6-Spot sketch shows that there was sufficient gap between the car and the bus and the accident has occurred due to opening of the right door of the car by its driver without taking proper care and caution and without observing the movement of the vehicles. Further, R.W. 1 in his cross-examination has categorically admitted that, at the time of accident, the door of the car was half opened. It is the specific case of the claimants that accident had occurred due to opening of the door of the car by its driver without looking into the vehicle passing on the right side of the car. Further, the Tribunal has observed that, the materials available on record and the evidence on record show that the root cause for the accident is the opening of the door of the car by its driver without taking due car and diligence and if he had not opened the door, certainly deceased would have passed through the gap between the bus and the car and though the police authorities have registered a case against the drivers of the bus and the car, but there is no materials to show that there was negligence or rashness on the part of the driver of the bus and therefore, the Tribunal has specifically, recorded the finding of fact that the accident has occurred due to fault on the part of the driver of the car alone and there is no negligence or rashness on the part of the driver of the bus and though the deceased was ran over by the bus, nothing can be attributed to the driver of the bus because the accident had occurred due to negligence on the part of the driver of the car alone. Therefore, the Tribunal has held that undisputedly, the insurer of the car is liable to indemnify the award amount and also recorded the finding that, there is no contributory negligence on the part of the driver of the bus and the deceased, rider of the motor cycle. The said finding of fact recorded by the Tribunal after due appreciation of the oral and documentary evidence and other materials available on record is just and reasonable and therefore, interference by this court is not called for, nor we find any substance in the submission and the ground urged by the Insurer in this regard and accordingly, answered this point.
Re. Point No. 2:
It is the case of the claimants that, deceased was aged about 31 years, Software Engineer working in IBM Company. P.W. 1 is the wife of the deceased and she has produced Ex. P14 Income tax returns and Ex. P22-Employers Certificate and Ex. P23-pay Slip. As per Ex. P13, basic salary of the deceased was Rs. 3,57,427/- per annum. Form No. 16, shows the Gross salary income of the deceased was Rs. 7,35,498/- per annum and tax deducted at source is Rs. 52,956/-.The Tribunal has justified in taking the net income of the deceased at Rs. 52,881/- per month and adding another 30% towards future prospects following the judgment of the Apex Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, and deducted 1/3rd towards personal expenses of the deceased following the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , determined his net income at Rs. 68,745/- per month and adopting Multiplier of ''16'' taking the age of the deceased as 31 years, has awarded a sum of Rs. 87,99,360/- towards loss of dependency. The said calculation and the compensation awarded by the Tribunal towards loss of dependency is just and proper and after due evaluation of the oral and documentary evidence available on file and therefore, interference by this Court is not called for. Further, the Tribunal has justified in awarding a sum of Rs. 15,000/- towards loss of consortium, Rs. 10,000/- towards loss of love and affection, Rs. 15,000/- towards loss of estate, Rs. 15,000/- towards transportation of dead body and funeral expenses and in all Rs. 88,54,360/- with interest at 8% p.a., from the date of petition till its realization. The quantum of compensation awarded by the Tribunal towards loss of dependency and towards conventional heads with interest at 8% p.a. from the date of petition till its realization on account of the death of the deceased in the road traffic accident is just and reasonable and it does not call for interference. Neither the Insurer nor the claimants have made out any good grounds to entertain the relief sought by them in these appeals, nor we find any merits in these appeals. Hence, these appeals filed by the Insurer and by the claimants are dismissed as devoid of merit.
The amount deposited by the Insurer in M.F.A. No. 6330/2013 shall be transmitted to the jurisdictional Claims Tribunal forthwith.
The Registry is directed to return the original records immediately.
Office to draw the award, accordingly.