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Judgment
B. Sreenivas Gowda, J—As all these appeals are arising out of a common road traffic accident and a common judgment of the Tribunal. With the consent of the learned counsel appearing for the parties, they are heard together and disposed off finally by this common judgment.
As there is no dispute regarding death of two babies and one Salia Begum in a road traffic accident occurred on 22.03.2008 by involvement of a lorry bearing No. AP-05/TT-3798 and Ambulance bearing No. KA-37/4587 by their drivers, the points remain for my consideration in the appeals are:
"1. Whether the finding of the Tribunal on negligence in holding accident has occurred due to rash and negligent driving of the driver of Ambulance is sustainable in law?
Whether the finding of the Tribunal on liability in fastening the same on the insurer of Ambulance is sustainable in law?
Whether quantum of compensation awarded in each case is just and reasonable or does it call for enhancement?"
Sri Sudarshan M., learned counsel appearing for the insurer of Ambulance submits the accident has occurred due to head on collision of ambulance and lorry, as such, drivers of both the vehicles had contributed for the accident. Inspite of that Tribunal has committed an error in holding that accident has occurred due to rash and negligent driving of Ambulance by its driver.
Regarding liability, he submits the driver of Ambulance having possessed LMV could not have driven Ambulance, which is a transport vehicle, therefore, Tribunal has committed an error in holding he has valid driving licence to drive the ambulance. Therefore, liability fastened by the Tribunal on the insurer of Ambulance is not sustainable.
Regarding quantum, he submits compensation awarded by the Tribunal in each case is just and reasonable and there is no scope for enhancement and he prays for allowing the appeal preferred by insurer of ambulance and dismiss the appeals filed by the claimants.
Sri Sanjay M. Joshi, learned counsel appearing for the insurer of lorry submits, the sketch produced at Ex. P.8 would clearly show that the accident has occurred due to rash and negligent driving of the driver of Ambulance. The Tribunal considering the same and other material available on record was justified in holding accident has occurred due to rash and negligent driving of ambulance by its driver. He prays for confirming the finding of the Tribunal on liability.
Sri R.S. Lagali, learned counsel appearing for owner of ambulance submits there is no error in the finding of the Tribunal on liability in fastening it on the insurer of ambulance warranting interference of this Court.
Sri Sandeep Vijaykumar, learned counsel appearing for the claimants submits, there is no illegality and infirmity in the finding of the Tribunal on liability in fastening it on the insurer of ambulance. Regarding quantum, he submits, compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and therefore, he prays for allowing the appeals preferred by the claimants and dismissing the appeals filed by the insurer of the ambulance.
After the accident, FIR was registered against the driver of ambulance. The police after investigating the complaint have filed the charge sheet against the driver of lorry. The sketch produced at Ex. P.8 would show lorry was proceeding on the left side of road from West to East. Whereas, the driver of Ambulance who started his journey from east to west took deviation to its extreme right side at the spot of accident and dashed against the lorry coming on the left of the road.
The insurer of ambulance who contends the accident has occurred due to contributory negligence of the driver of lorry as well as ambulance did not choose to examine the driver of ambulance nor any eyewitness to the accident. The Tribunal considering the registration of FIR and filing of charge sheet against the driver of ambulance and the spot sketch and other oral and documentary evidence on record was justified in holding that the accident occurred due to rash and negligent driving of ambulance by its driver. I have carefully gone through the finding of the tribunal on negligence and do not find any illegality warranting interference of this Court. Hence, the finding of the Tribunal on negligence is confirmed.
Regarding liability:
In para-23 of the judgment, the Tribunal has observed that Ex. R.6 is the copy of extract of RC of the ambulance and it shows it is registered as LMV and its unloaded weight is 755 KGs and loaded weight is 1100 KGs. Ex. R.7 is the DL endorsement, which shows he was authorised to drive LMV with effect from 23.1.2003 to 22.1.2023. It also mentions the endorsement of licence to drive HTV valid from 25.2.2006 to 24.2.2009. The Tribunal considering this was right in holding that the driver of ambulance had valid licence to drive the ambulance and in fastening the liability on the insurer of the ambulance and it is in accordance with the several judgments of this Court and of the Supreme Court in such and similar cases.
Regarding quantum:
MFA No. 31384/2010 is arising out of MVC No. 359/2008. It is a case of death of Shamshalam, a baby aged about four days. Claim petition is filed by its parents seeking compensation under Section 166 of the Motor Vehicles Act. The claimants in support of their contention that deceased is their baby was born 4 days prior to the accident have examined claimant No. 1-father of deceased as P.W. 1 and it is corroborated by complaint and FIR marked as Ex. P.1 and PM report produced at Ex. P.5. The Hon''ble Supreme Court in the case of National Insurance Company Ltd. Vs. Kusuma and Another, (2011) ACJ 2432 : (2011) 9 JT 356 : (2011) 164 PLR 270 : (2011) 4 RCR(Civil) 180 : (2011) 9 SCALE 305 : (2011) 13 SCC 306 : (2011) 10 SCR 546 : (2011) 4 TAC 273 : (2012) AIRSCW 266 : (2011) 6 Supreme 18 for the death of still born child has awarded compensation of Rs. 1,80,000/-. In the instant case also, deceased was just four days'' old baby at the time of accident and the aforesaid judgment of the Hon''ble Supreme Court is squarely applicable to the facts of the case.
Accordingly, a sum of Rs. 1,80,000/- is awarded as against Rs. 30,000/- awarded by the Tribunal and the claimants in this case are entitled for an additional compensation of Rs. 1,50,000/- with interest at 6% p.a.
In MFA No. 31385/2010, it is a case of death of Ashiya Afsa, a child of eight months old. Claim petition is filed by parents of deceased. Claimants in support of their contention that deceased baby was aged about eight months and died in the accident have examined 2nd claimant-mother of deceased as P.W. 2 and it is corroborated by FIR, charge sheet and PM report of the child produced at Ex. P.1, P.2 and P.7 respectively. Considering the deceased was eight months'' old child at the time of accident, the compensation of Rs. 1,80,000/- awarded by the Tribunal is just and reasonable and does not call for interference.
Hence, there is no scope for enhancement of compensation in this case.
MFA No. 31386/2010 is arising out of MVC No. 361/2008. It is a case of death of Safia Begum. The claimants who are her husband, son and daughter in support of their contention that deceased was earning Rs. 300/- per day by doing tailoring except examining the son of the deceased as P.W. 1, have not adduced any evidence regarding avocation and income of the deceased. In the absence of proof of income, considering the age of deceased as 55 years, year of accident as 2008 and avocation as daily wager, her income is assessed at Rs. 4,000/- per month. 1/3rd of the income of the deceased deducted by the Tribunal towards her personal expenses and 11 multiplier applied based on the age of deceased who was 55 years at the relevant point of time is sound and proper. Therefore, loss of dependency works out to Rs. 3,52,000/- (Rs. 4,000/- x 2/3 x 12 x 11) and it is awarded as against Rs. 2,16,000/- awarded by the Tribunal.
A sum of Rs. 25,000/- is awarded towards loss of consortium in respect of first claimant and Rs. 40,000/- is awarded towards love and affection to claimants No. 2 and 3 at the rate of Rs. 20,000/- each and Rs. 10,000/- towards funeral expenses and Rs. 10,000/- towards loss of estate awarded by the Tribunal is just and proper. Thus in all a sum of Rs. 85,000/- is awarded under different conventional heads.
Thus, in all, the claimants are entitled for the following compensation:
Hence, the claimants in this case are entitled for additional compensation of Rs. 1,90,000/-.
Accordingly, Miscellaneous First Appeals No. 31116, 31117 and 31118 of 2010 filed by the insurer of ambulance are dismissed.
Miscellaneous First Appeal No. 31385/2010 filed by the claimants in MVC No. 360/2008 is dismissed as devoid of merit.
Miscellaneous First Appeals No. 31384 and 31386 of 2010 filed by the claimants are allowed in part.
The appellants/claimants in MFA No. 31384/2010 are entitled for an additional compensation of Rs. 1,50,000/- with interest @ 6% per annum from the date of claim petition till realization.
The appellants/claimants in MFA No. 31386/2010 are entitled for an additional compensation of Rs. 1,90,000/- with interest @ 6% per annum from the date of claim petition till realization.
Insurer of ambulance viz., the National Insurance Company is hereby directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court together with interest within two months from the date of receipt of a copy of this judgment.
Apportionment, deposit and release of the compensation will be in the ratio of the awards of the Tribunal.
Amount deposited in the appeals filed by the insurance company is ordered to be transmitted to the Tribunal for disbursement in terms indicated herein above.
Draw up the awards accordingly.
No order as to costs.