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Judgment
N.K. Patil, J.—These two appeals by the Insurer and the claimant are directed against the same judgment and award dated 24th September 2008, passed in M.V.C. No. 308/ 2006, by the Civil Judge (Sr.Dn) and Additional Motor Accident Claims Tribunal, Hiriyur, (for short, Tribunal'').
While the Insurer has filed the appeal for reduction of compensation on the ground that the deceased was aged about 70 years and the income of Rs. 3,000/- per month assessed by Tribunal is on the higher side, the claimant has filed the appeal seeking enhancement of compensation on the ground that, the compensation of Rs. 1,69,600/- awarded after deducting 20% contributory negligence on the part of the deceased, as against her claim for Rs. 05.00 Lakhs, is inadequate and needs to be enhanced and that the contributory negligence of 20% fixed on the part of the deceased is also liable to be set aside.
The facts in brief are that, the claimant is the only daughter of the deceased Late Honnurbi, W/o. late lyad Sab. She filed the claim petition u/s 166 of the Motor Vehicles Act, contending that, at about 6:45 A.M., on 17-04-2006, when the deceased Honnurbi was walking on the extreme left side of the road, near Metikurke village, observing traffic rules from her house to reach her agricultural land, she met with an accident on account of rash and negligent driving by the driver of Tata Indica Car bearing No. KA-19/N-4329, Due to the impact, the deceased sustained grievous injuries and died on the spot.
It is the specific case of the insurer that, the Tribunal erred in assessing the income of the deceased at Rs. 3,000/- per month for the reason that, the deceased was a lady, aged about 70 years and would not have been earning so much. Further, he submits that the Tribunal ought to have deducted 50% towards the personal expenses of the deceased as the number of dependent is only one, i.e. the claimant herein. Therefore, he submits that the impugned judgment and award passed by tribunal is liable to be modified accordingly.
However, it is the specific case of the claimant that, due to the rash and negligent driving by the driver of the Tata Indica car, the accident has occurred, resulting in the death of the deceased and therefore, the Tribunal ought to have awarded higher compensation and fastened the entire liability on the insurer of the offending vehicle instead of fixing contributory negligence of 20% on the deceased.
It is the further case of the claimant that, the deceased was aged about 70 years, working as agricultural coolie, earning a sum of Rs. 4,000/- per month and was contributing the entire sum and on account of her unnatural death, she has become total orphan as the deceased was the only social security and on account of her death, she has lost the love and affection apart from moral guidance, hope and aspirations in life and therefore, she has to be compensated reasonably.
On account of the death of the deceased, the claimant filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 05.00 lakhs against the Insurer and the owner of the offending vehicle in question. The said claim petition had come up for consideration before the Tribunal on 24th September, 2008. The Tribunal, after considering the, relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs. 1,69,600/-, after deducting 20% contributory negligence on the part of the deceased, under different heads, with 6% interest per annum, from the date of petition till the date of realisation. Being aggrieved by the quantum of compensation awarded, the Insurer is in appeal, seeking reduction and being dissatisfied with the quantum of compensation awarded by the Tribunal as also the contributory negligence of 20% fixed on the deceased, the claimant is in appeal before this Court, seeking enhancement of compensation and also to set aside the contributory negligence.
I have heard learned Counsel for Insurer and learned Counsel for claimant, for considerable length of time.
After hearing learned Counsel for the parties and after careful perusal of the impugned judgment and award passed by the Tribunal, it is seen that the occurrence of accident and the resultant death of the deceased arc not in dispute. The Tribunal, after assessing the oral evidence of PWs 1 and 2 on behalf of claimant and RW.1 on behalf of Insurer, coupled with the documentary evidence at Exs.P1 to P9 and Exs.R1 to R3, has fixed the contributory negligence in the ratio of 80:20 on the part of the driver of the offending vehicle and on the part of the deceased. The Tribunal, having regard to the age and avocation and the year of accident, has rightly assessed the monthly income of the deceased at Rs. 3,000/- and deducting 1/3rd towards her personal and living expenses, has rightly awarded compensation towards loss of dependency. Further, having regard to the facts of the case, I am of the considered view that the compensation awarded towards conventional heads is also just and reasonable and it does not call for interference.
Further, so far as the contributory negligence fixed by the Tribunal on the driver of the offending vehicle and the deceased in the ratio of 80:20 is concerned, it can be seen that the Tribunal has observed after assessing the oral evidence of RW1 coupled with the documentary evidence of Ex.R-2 rough sketch that, the accident occurred on the centre of the National Highway No. 4 and therefore/the deceased also being aged about 70 years, contributed to the accident. Therefore, I am of the view that the Tribunal is right in coming to the said conclusion. Hence, interference in the same is uncalled for.
In the light of the facts and circumstances of the case, as stated above, the appeals filed by Insurer as well as the claimant are dismissed as devoid of merit.
The impugned judgment and award dated 24th September 2008, passed in M.V.C. No. 308/2006, by the Civil Judge(Sr.Dn) and Additional Motor Accident Claims Tribunal, Hiriyur, is hereby confirmed.
The amount in deposit by the Insurer is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.