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Judgment
K. Govindarajulu
These three appeals are by respondent no.2 in MVC.Nos. 123, 124, 125/2006 on the file of the MACT -V. Jamkhandi. The parties will be referred according to their ranking before the MACT for convenience.
The facts necessary for the consideration of the appeals are as follows:
The case of the claimants is that the deceased Rajugouda Patil along with the claimants in MVC.NO. 124/2006 and 125/2006 were moving in a two wheeler Suzuki Max 100 motorcycle, Then the driver of the goods vehicle bearing registration No. KA 28/3713 has hit the two wheeler from back side, it resulted in accident So, the husband of first claimant and son of the second claimant namely Rajugouda Patil succumbed to the injuries and the other claimants in MVC.No.124 and 125/2006 suffered injuries. So, the legal representatives of the deceased and the injured have preferred these three claim applications.
The same is resisted by the Insurance Company contending firstly, that the two wheeler was authorised under the Motor Vehicles Act for travel by two persons. Three persons having used the vehicle, there is a violation of the terms and conditions of the policy. So, u/s 149 of the Motor Vehicles Act, the Company is not liable to pay the compensation. Even otherwise, it is the driver/deceased Rajugouda Patil who was negligent in driving the vehicle, so seek for exonerating the Company. The third contention raised by the Company is that the compensation fixed is on a higher side.
The learned Advocate for the Insurance Company reiterates three grounds and seek for exonerating the Company from paying the compensation.
The learned Advocate for the claimants while supporting the finding recorded by the learned Member of the Tribunal contend that the answer in regard to the negligence, using of the vehicle by more than two persons is found from a reading of the manner in which the accident occurred, referred to in the charge sheet. In the charge sheet, it is stated that the lorry has dashed from backside so the question of negligence or three persons will not come to the aid of the Insurance Company. Further, substantiate contending that the injuries and the loss of income on account of permanent disability is properly assessed, approach of the learned Member of the Tribunal is proper, so seek for dismissal of the appeals.
The submissions probablize accident is admitted. In regard to the actionable negligence, a perusal of the charge sheet would probablize that, the driver of the lorry has hit the two wheeler from backside. So, there is force in the submission of the learned Advocate for the claimants, so reject the submission of the learned Advocate for the Insurance Company on the subject of negligence. If the rider of the two wheeler had an opportunity to see the vehicle, then the question of two persons negligence would arise. So, the first and second point urged by the learned Advocate for the Insurance Company are rejected. In regard to third contention, facts of each case are taken up for consideration to give a finding on the quantum of compensation.
In MFA.No. 12904/2006 (MVC. NO. 123/2006) the occupation of the deceased Rajugouda Patil was agriculturist. His income was assessed at Rs.4500/-1/3 is deducted towards the personal earnings. Based upon the dependency of the wife and mother, compensation is fixed looking to the age of the surviving spouse, who is 20 years and the deceased being 28 to 30 years old, multiplier 18 is applied. The break up is as under:-
1.
Loss of dependency
Rs. 6,12,000/-
2.
Loss of consortium
Rs. 0,15,000/-
3.
Loss of Estate
Rs. 0,50,000/-
4.
Loss of funeral and obsequies
Rs. 0,03,000/-
5.
Love and affection
Rs. 0,05,000/-
Total
Rs. 6,85,000/-
Exs.P.10 and P.11 are the RTCs of the land of the deceased. About 22 acres of dry land was held by the deceased. The accident is of the year 2005. So, the income of the deceased assessed at Rs.4,500/- per month is on the higher side when the income of similarly placed agriculturists/claimants is fixed at Rs.3000/-. Hence, the income assessed at Rs.4500/-per month is liable to be set aside and the compensation is reassessed. In regard to loss of dependency, out of Rs.3000/-, 1/3 is deducted towards personal expenses as there are two dependants, which works out to Rs.2,000/- and the claimants are entitled to Rs.4,08,000/-(Rs.2000 X 12 X 17) towards loss of dependency. A sum of Rs.40,000/- is awarded under the conventional heads. So, it works out to Rs.4,48,000/-. The Tribunal has awarded a sum of Rs.6,85,000/-. Therefore, the compensation is reduced from Rs.6,85,000/- to Rs.4,48,000/-. So, the submission of the learned Advocate for the Insurance Company on the quantum of compensation is accepted. The submission of the learned Advocate for the claimants that the compensation fixed is just is rejected. The appeal is allowed in part.
In regard to the claim in MFA.No. 12905/2006 (MVC.No. 124/2006). the Tribunal has awarded a sum of Rs.2,31,500/-. The break up is as follows:
i) Pain and agony
Rs. 0,35,000/-
ii) Loss of income during treatment
Rs. 0.12,000/
iii) Medical expenses
Rs. 0.05,000/-
iv) Loss of income on account of permanent disability
Rs. 1,62,000/-
v) Loss of amenities unhappiness
Rs. 0,05,000/-
Total
Rs.2,31,500/-
The reason for the disability is mal union. Mal union cannot be assessed at 30% of the whole body, in view of the law laid down in the ruling in Daddanala Satyavathi Vs. S.Appa Rao and Others, , the disability-is assessed at 10%. Hence, the compensation awarded under the head of loss of income on account of permanent disability requires interference. So, compensation under the said head alone is reassessed and quantified. Income per month being Rs.3000/-, 10% of Rs.3000 = Rs.300 X 12 = Rs.3600 X 18= Rs.64,800/-. This amount is awarded in the place of 1,62,000/- awarded by the tribunal. Therefore, out of Rs.2,31,500/- awarded, a sum of Rs.97,200/- is liable to be deducted. Hence, the compensation works out to Rs. 1,34,300/- and the same is awarded. So, the submission of the learned Advocate for the Insurance Company on the quantum of compensation is accepted. The submission of the learned Advocate for the claimant that the compensation fixed is just is rejected. The appeal is allowed in part.
In regard to MFA.NO. 12906/2007 (MVC.No. 125/2006), the break up of compensation is as follows:
i) Pain and agony
Rs. 0,40,000/-
ii) Loss of income during treatment
Rs. 0,12,000/-
iii) Medical expenses
Rs. 0,05,000/-
iv) Loss of income on account of permanent disability
Rs. 1,29,600/-
v) Loss of amenities and unhappiness
Rs. 0,20,000/-
Total
Rs. 2,06,600/-
The claimant had compound fracture of the shaft and femur. The Doctor has certified the disability at 40% of the limb. So, the assessment of the disability at 20% by the learned Member of the Tribunal to the whole body is on a higher side. It works to 15% of the whole body, in view of the law laid down in D.Sathyavathi''s case. So, it is reassessed, insofar as the compensation under the head loss of income on account of permanent disability. 15% of Rs.3000= Rs.450/- X 12 X 18= Rs.97,200/- and the same is awarded in the place of Rs. 1,29,600/-. The difference works out to Rs.32,400/-and the same is deducted from Rs.2,06,600/- and the claimant is thus entitled to a compensation of Rs. 1,74.200/-. So, the submission of the learned Advocate for the Insurance Company on the quantum of compensation is accepted. The submission of the learned Advocate for the claimant that the compensation fixed is just is rejected. The appeal is allowed in part. In the result, all the three appeals are allowed in part. The amount in deposit be transferred to the Tribunal for payment.