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Judgment
B.S. Indrakala, J.—The above appeal is preferred against the judgment and award dated 17.12.2008 passed in MVC No. 667/2005 on the file of the Fast Track Court-I and Addl. MACT, Tumkur. It is the case of the claimants that they are the brother and sister of one Jayamma who was aged about 35 years and was doing tailoring and house hold work earning an income of Rs. 5000/- per month; on 22.5.2005 at about 7.30 PM when she the said Jayamma was crossing the road opposite to SVS Building, Oorukere Village on NH4, she met with an accident on account of the rash driving of the car bearing Regn. No. KA-17-M-4159 by its driver and died. The claimants being the siblings of the said Jayamma are put to not only loss of love and affection, but, also loss of dependency as the deceased being a spinster was contributing to the expenses of the family and sought compensation from the respondents i.e., owner and insurer of the said lorry bearing Regn. No. KA-17-M- 4159.
The respondent/insurer in its statement of objections while denying the cause of accident and the cause of death, age and income of the victim also denied the relationship of the claimants with that of the deceased. However, it is pleaded admitting the issue of policy and has specifically contended that liability if any is subject to the terms and conditions of the policy.
Though both the siblings chose to file MVC 667/2005, one of the claimants therein viz., the sister of the deceased also preferred another case in MVC No. 631/2005 and both the cases were clubbed together and common judgment was passed by the tribunal.
The claimants to prove their case chose to examine the brother/claimant No. 1 as PW1 and got marked documents Exs. P.1 to P. 9. On behalf of the respondents, no evidence is adduced.
The tribunal on appreciating the said evidence, by fixing the contributory negligence on the part of the victim to 10% though awarded a sum of Rs. 2,82,000/- as compensation, reduced the same by 10% viz., Rs. 28200/- and awarded Rs. 2,53,800/- with interest @ 6% p.a. from the date of petition till realisation.
Aggrieved by the said judgment and award, the insurer preferred MFA 2447/2009 and 2448/2009 and the said appeals were dismissed of by a common order dated 15.06.2012. However, the view taken by the tribunal with regard to the apportionment of contributory negligence in the ratio of 90:10 on the part of the driver of the offending vehicle and that of the deceased is held as justifiable.
The learned counsel for the claimants/appellants however submitted that fixing of contributory negligence on the ''victim at 10% is not proper, in fact accident occurred solely on account of the rash driving of the vehicle involved; likewise, the notional income taken at Rs. 3000/- per month is also on the lower side and thus, seeks enhancement of the compensation awarded.
Learned counsel appearing for the appellant further submitted that the tribunal ought to have taken the notional income at Rs. 4500/- per month and also could not have deducted 50% of the notional income towards the personal expenditure of the victim and seeks enhancement of the amount awarded by the tribunal.
Per contra learned counsel appearing for the respondent/insurer submitted that infact both the claimants who are alleged to be the siblings of the victim were not depending upon the income of the deceased and as such there is no loss of dependency at all and what they are entitled to is only to an extent of loss of estate and as such the amount awarded is on the higher side, the same-needs to be reduced.
Thus, the accident is not in dispute, however, with regard to the contributory negligence on the part of the victim, it is seen that the tribunal by considering that she was a pedestrian crossing the road, she ought to have been careful while crossing the road has fixed the negligence at 10% which is also upheld in the appeal filed by the insurance company vide order dated 15.06.2012 passed in MFA No. 2447/2009 c/w MFA No. 2448/2009 and thus, the said fixing of the contributory negligence on the part of the victim is conclusive.
With regard to the quantum of compensation awarded, in the absence of evidence as proof of income of the deceased, considering the age as well as the background, the tribunal has taken the notional income at Rs. 3000/- per month which is just and proper. Further, it is seen that while calculating the loss of dependency the tribunal has deducted 50% of the income of the victim towards personal expenditure as she was a spinster and by applying the multiplier of 15, considering the age of the victim as 35 years has deemed it fit to award Rs. 2,70,000/- which is also just and proper and the same does not call for interference. The tribunal has also awarded a sum of Rs. 12,000/- towards other conventional heads which is also proper as the claimants are only siblings and not the married spouse and children of the victim. Thus, the impugned judgment and award does not call for any interference. Hence, the following:
ORDER
The above appeal is dismissed.
Sri C.R. Ravishankar is permitted to file vakalath within two weeks from today.