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Judgment
N.K. Patil, J.—These appeals by the claimants and by the insurer are directed against the same judgment and award dated 12/08/2010 passed in MVC No. 350/2009, by the Principal Civil Judge (Sr. Dn) and Motor Accident Claims Tribunal-IV, Davanagere, (for short ''Tribunal''). The Tribunal by its judgment and award has awarded a sum of Rs. 5,19,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of Rs. 80,75,000/-, on account of the death the deceased Sri. G.S. Sathish, in the road traffic accident.
It is the case of the claimants that the quantum of compensation awarded by the Tribunal is inadequate and it requires to be enhanced. Whereas, it is the case of the Insurer that, the quantum of compensation awarded by the Tribunal is disproportionate to the source of income of the deceased and that the Tribunal has erred in not fixing contributory negligence on the part of the deceased and therefore, it is liable to be modified, fixing reasonable contributory negligence on the part of the deceased.
In brief, the facts of the case are:
The claimant No. 1 is the wife and claimant No. 2 is the mother of the deceased Sri. G.S. Satish. On account of the death of the deceased in the road traffic accident, they filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the driver, owner and Insurer of the offending vehicle, contending that, on 13.12.2008 at about 10.40 a.m., when the deceased was returning from Kerebilachi village in his motor cycle bearing No. KA.17.V.5426 and when he came near Chowdamma Temple, Somalapura village, at that time, the driver of the bus bearing Reg. No. KA.16.B.5777 came in a rash and negligent manner and dashed against the motor cycle, due to which, he sustained grievous injuries. Immediately, he was shifted to Kerebilachi Government Hospital for treatment and then he was shifted to City Central Hospital, Davanagere. But he succumbed to the injuries.
It is the further case of the claimants that, deceased was aged about 43 years, hale and healthy prior to the accident and was earning Rs. 20,000/- per month as he was a progressive agriculturist owning agricultural land as per Ex. P. 11 to 15 and contributing the same to the family. Due to his untimely death, claimants have lost their bread earner and put to great hardship, 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, has allowed the claim petition in part, awarding the compensation of Rs. 5,19,000/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit.
Being aggrieved by the said judgment and award, both the claimants and Insurer have presented these appeals.
We have heard the learned counsel appearing for the claimants and the learned counsel appearing for Insurer in these appeals.
The submission of learned counsel appearing for claimants, is that, the Tribunal has erred in taking the income of the deceased at Rs. 4,500/- per month which is on lower side and it needs to be re-assessed reasonably. Further, he submits that the compensation awarded by the Tribunal towards conventional heads is on lower side and it needs to be enhanced. Learned counsel appearing for he claimants submitted so far as the stand taken by the Insurer in respect of contributory negligence that, the said stand of the Insurer cannot be sustained and is liable to be set aside, on the ground that, the Tribunal, after due appreciation of the oral and documentary evidence available on file, has recorded the finding of fact holding that, on account of the rash and negligent driving by the driver of the bus, the said accident had occurred and even though, reasonable opportunity has been afforded, the Insurer has not examined the driver of the bus who is the best person to explain what is the percentage of negligence on the part of the deceased who was riding the motorcycle. Therefore, he submitted that, the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation towards loss of dependency and towards conventional heads.
Per contra, learned counsel appearing for the Insurer, inter-alia, submitted that, the accident is not solely due to rash and negligent driving by the driver of the bus and there is a contributory negligence on the part of the deceased. To substantiate the said submission, he submitted hat, as per the contents of Exs. P8 and 9, the width of the tar road at the place of incident is 13 ft. and the accident took place at the middle of the road and the deceased who was riding the motorcycle was equally contributed to the accident and therefore, the Tribunal ought to have fixed the reasonable contributory negligence on the part of the deceased who was the rider of the motorcycle. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by finding reasonable contributory negligence on the part of the deceased and by reducing the compensation awarded by the Tribunal.
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 is justified in not fixing me contributory negligence on the part of the deceased who was the rider of the motor cycle?
(ii) Whether the quantum of
compensation awarded by the Tribunal is just and reasonable?
Re. Point No. 1:
It is the submission of the learned counsel for the Insurer that, the accident has not occurred only on account of the rash and negligent driving by the driver of the bus and the deceased who was the rider of the motorcycle is also equally contributed to the accident, since the accident has occurred on the middle of the 13 ft. road. The said submission of the learned counsel for the Insurer cannot be accepted, for the reason that, the Tribunal, after due appreciation of the oral and documentary evidence, specifically, Exs. P8 and P9 the spot mahazar and rough sketch and that the charge sheet was filed against the driver of the bus, has recorded the finding of fact in para-9 of its judgment holding that the accident had occurred due to negligence on the part of the driver of the bus. After careful perusal of the original records, it is not in dispute that the appellant has not made out any sincere efforts to examine the driver of the bus, as he was served and failed to appear before the Tribunal to establish that there is no negligence on his part. Even the 2nd respondent the owner of the vehicle also failed to appear before the Court even after service of notice and relying upon the contents of Exs. P8 and 8, it cannot be said that the rider of the motor cycle has contributed his negligence for the accident in question, as the width of the road is very narrow as per the contents of Exs. P8 and 9. The Tribunal, after evaluation of the oral and documentary evidence available on file, has justified in fixing the negligence on the part of the diver of the bus and therefore, we do not find any error or illegality in the said finding recorded by the Tribunal. Nor the learned counsel for Insurer has made out any case to entertain the said stand. Therefore, the above submission of the learned counsel for the Insurer is liable to be rejected and accordingly, it is rejected.
Re. Point No. 2:
The occurrence of the accident on 13.12.2008 and the resultant death of the deceased Sri. G.S. Satish are not in dispute. It is also not in dispute that claimants are the wife and mother of the deceased. The deceased was aged about 43 years, agriculturist by profession and owning agricultural lands and he was hale and healthy prior to the accident. It emerges from the judgment that, the Tribunal, taking into consideration the age, occupation and year of the accident, has assessed the income of the deceased at Rs. 4,500/- per month which is just and proper and we accept the same. The Tribunal, after deducting 1/3rd towards personal and living expenses of the deceased, since there are two claimants, and by adopting multiplier of ''14'' since the deceased was aged about 43 years, has justified in awarding a sum of Rs. 5,04,000/- towards loss of dependency and therefore, it does not call for interference.
However, a sum of Rs. 15,000/- awarded by the Tribunal towards conventional heads, such as, loss of consortium, towards loss of love and affection, towards loss of estate and towards transportation and funeral expenses is on lower side and it needs to be enhanced. Having regard to the facts and circumstances of the case, we award a sum of Rs. 45,000/- under the said heads. Thus, in all, the claimants are entitled for the compensation of Rs. 5,49,000/- instead of Rs. 5,19,000/- awarded by the Tribunal. There would be an enhancement of Rs. 30,000/- with interest at 6% p.a., from the date of petition till its realization. For the foregoing reasons, the appeal filed by the claimants is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merits.
The impugned judgment and award dated 12/08/2010 passed in MVC No. 350/2009, by the Principal Civil Judge(Sr. Dn) and Motor Accident Claims Tribunal-IV, Davanagere, is hereby modified, awarding a sum of Rs. 30,000/- with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.
The Insurer is directed to deposit the enhanced compensation of Rs. 30,000/- with interest a 6% p.a., from the date of petition till its realization, within three weeks from the date of receipt of the copy of this judgment.
Immediately on deposit by the Insurer, the enhanced compensation of Rs. 30,000/- with interest shall be shall be released in favour of the claimant Nos. 1 and 2 in equal proportion. The amount deposited by the Insurer shall be transmitted to the jurisdictional Tribunal forthwith.
Draw the award, accordingly.