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Judgment
B. Sreenivas Gowda, J.—MFA Nos. 7656 and 7657 of 2014 are filed by the Insurer of a lorry challenging the judgment and award passed by the Tribunal in MVC No. 2996 and 2997 of 2013 on the ground of negligence and quantum, whereas MFA. Crob. No. 7/2015 is filed by the claimant in MVC No. 2997/2013 seeking enhancement of compensation awarded by the Tribunal in the case of death of his minor son - Mayank.
As these appeals and CROB are arising out of a common road traffic accident, they are heard together and disposed of finally by this common judgment, with the consent of the learned Counsel appearing for the parties.
Heard the learned counsel appearing for the parties and perused the judgment and award passed by the Tribunal including its records.
For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
As there is no dispute regarding death of Chaitra and her minor child Mayank, who are the wife and minor child of the claimant respectively in a road traffic accident occurred on 13.05.2013 by involvement of a motor cycle bearing No. KA.05/HU-9439 and a lorry bearing registration No. TN.01/S-9797, the only points that arise for my consideration in the appeals and cross objection are:
"1. Whether the finding of the Tribunal on ''negligence'' holding that the accident has occurred due to the rash and negligent driving of the driver of lorry is sustainable in law?
Whether quantum of compensation awarded by the Tribunal in MVC No. 2996/2013 in the case of death of Chaitra - wife of the claimant is just and reasonable or does it call for reduction?
Whether quantum of compensation awarded by the Tribunal in MVC No. 2997/2013 in the case of death of minor boy - Mayank is just and reasonable or does it call for reduction or enhancement?"
Sri. Anup, Advocate for Sri. B.C. Seetharama Rao, the learned counsel appearing for the insurer of lorry submits that, though the driver of lorry was driving the lorry on the left of the service road of Tumkur - Bangalore national highway slowly and carefully by observing all the traffic rules and regulations, the accident has taken place as the rider of two wheeler who was proceeding along with his wife and a minor child as pillion riders suddenly entered into the said service road from Tumkur - Bangalore national highway and dashed against the lorry, as such the accident has occurred due to rash and negligent riding of the rider of two wheeler who is the claimant in both the claim petitions.
He submits that, quantum of compensation awarded in both the cases is not just and reasonable, it is on the higher side and therefore, he prays for allowing the appeals filed by the insurer of lorry both on the ground of negligence and quantum and dismissing the Cross-objection filed by the claimant.
Sri. Udaya Kumar R.L., learned counsel appearing for the claimant submits that, there is no illegality or irregularity in the findings of the Tribunal on negligence warranting interference of this Court. He submits that, quantum of compensation awarded in the case of death of minor boy is not just and reasonable, it is on the lower side and therefore he prays for allowing the Cross-objection filed by the claimant and dismissing the appeals filed by the insurer of lorry.
It is not in dispute that both the lorry and the two-wheeler were proceeding in the same direction from Bangalore towards Tumkur. The lorry was proceeding in the service road, whereas the claimant was riding his two wheeler on Bangalore - Tumkur national highway along with his wife and minor child as pillion riders. It is the specific case of the claimant that when he was proceeding from the main road into service road slowly and carefully by observing all the traffic rules and regulations, the driver of the lorry drove the lorry on the right of the service road in a rash and negligent manner and dashed against his two wheeler, as a result himself, his wife and minor child fell down and his wife and minor child succumbed to the injuries.
It is also not in dispute that the accident has taken place by involvement of a lorry and a two-wheeler. The two-wheeler was ridden by the claimant himself along with deceased persons who are his wife and minor son as pillion riders. The claimant in support of his contention that, he was riding the two-wheeler on the left side of Bangalore - Tumkur N.H. 4 and while proceeding towards service road slowly and carefully the driver of lorry drove the same on the right of the service road in a rash and negligent manner and dashed against his two wheeler, as a result himself, his wife and minor child fell down and later his wife and minor child succumbed to the injuries, as such the accident has taken place due to rash and negligent driving of the driver of the lorry, has examined himself as PW 1 and has produced the FIR, spot mahazar, spot sketch, IMV report and charge-sheet which were marked as Exs. P. 1, 2, 3, 6 and 7 respectively.
As seen from the documents, the FIR was registered against the driver of the lorry. The police after investigating the complaint have filed charge-sheet against the driver of the lorry. The insurer of lorry who has contended that, even though the driver of the lorry drove the lorry on the left of the service road of Bangalore - Tumkur national highway the accident has taken place due to rash and negligent riding of two-wheeler by the claimant himself did not choose to examine either the driver or the cleaner of the lorry, nor they examined any eye witness to the accident. It is no doubt true that the claimant in his evidence has admitted that, he does not possess any license to ride two-wheeler. In his cross examination, he has stated that he has applied for learner''s licence. However non-possessing of a licence cannot be the ground to hold that he was negligent in riding his two-wheeler. As seen from the spot mahazer and the sketch at the spot of the accident, there is a provision for vehicles proceeding on Bangalore - Tumkur main road to enter into the service road as such the claimant was entitled to take his two-wheeler from Bangalore - Tumkur main road into the service road. If that is so, the driver of the lorry should not have driven the lorry on the right of the service road, that too at the spot of the accident. If he had driven the lorry on the left side of the service road, there was no occasion for the claimant to come in contact with the lorry and dash against the lorry. Considering the above material aspect of the matter and other oral and documentary evidence available on record, the Tribunal was justified in holding that accident has occurred due to rash and negligent driving of the driver of the lorry. I have carefully gone through the finding of the Tribunal on negligence and do not find any error warranting my interference. Hence, the finding of the Tribunal on negligence is conferred. Point No. 1 is answered accordingly.
MFA No. 7656/2014 is arising out of MVC No. 2996/2013:
It is the case of death of one Chaitra aged about 25 years. Claim petition is filed by her husband. Claimant in support of his contention that, his wife by doing tailoring was earning Rs. 10,000/- per month except examining himself as PW 1 has not led any other evidence regarding avocation and income of his deceased wife. In the absence of proof of income, considering her age as 25 years, year of accident as 2013 and her avocation as daily wager, her income could be easily assessed at Rs. 6,000/- per month and there is evidence to show that the claimant who is the husband of deceased was working as an Auto CAD Engineer at Relay Consultant Engineering and he was not exclusively depending upon the income of his deceased wife and she was not contributing her entire earnings towards the welfare of her family and therefore 50% of the income of the deceased deducted by the Tribunal towards her personal expenses and taking the remaining 50% as her contribution towards family is sound and proper. The multiplier of ''16'' is to be applied based on the age of the claimant who was 31 years at the relevant point of time. So, ''loss of dependency'' would work out to Rs. 6,000 X 1/2 X 12 X 16 = Rs. 5,76,000/- and it is awarded as against Rs. 6,48,000/- awarded by the Tribunal.
The next question would be, whether adding of 50% of the income of the deceased by the Tribunal towards his future prospects and awarding compensation of Rs. 3,24,000/- under the head future prospects is sustainable in law. It is only in the cases where deceased person was working against permanent or stable employment, 50% of his income could be added towards his or her future prospects as has been held by the Hon''ble Supreme Court in the case of Sarla Verma. In the instant case, admittedly deceased Chaitra was not working against any permanent or stable employment. Therefore, adding 50% of her earning and awarding compensation of Rs. 3,24,000/- by the Tribunal towards future prospects is not sustainable in law and therefore it is disallowed.
Rs. 1,45,000/- awarded by the Tribunal under various conventional heads such as Rs. 1,00,000/- towards loss of consortium, Rs. 25,000/- towards loss of estate and Rs. 20,000/- towards transportation of dead body and funeral expenses is just and proper and there is no scope for reduction.
The break-up is as under:
Thus, claimant is entitled for a total compensation of Rs. 7,21,000/- as against Rs. 11,17,000/- awarded by the Tribunal in the case of death of Chaitra - wife of the claimant, and consequently, compensation awarded by the Tribunal is reduced by Rs. 3,96,000/-.
MFA No. 7657/2014 and Cross Objection No. 7/2015 arising out of MVC No. 2997/2013:
It is the case of death of minor child aged about 2 1/2 years. The claim petition is filed by his father of deceased minor child.
As the compensation of Rs. 3,75,000/- awarded by the Tribunal for the death of minor child aged about 2 1/2 years is in accordance with the several judgments of this Court and of the Hon''ble Supreme Court passed in such and similar cases, there is no scope for either reduction or enhancement and therefore both appeal and the cross-objection are liable to be dismissed. Hence, the following order:
MFA 7656/2014 is allowed in-part. Judgment and award dated 12-08-2014 passed in MVC No. 2996/2013 on the file of the MACT, Court of Small Causes, Bangalore, is modified to the extent stated herein above. Claimant is entitled to a total compensation of Rs. 7,21,000/- as against Rs. 11,17,000/- awarded by the Tribunal and consequently, compensation awarded by the Tribunal is reduced by Rs. 3,96,000/-.
Insurance Co. is directed to deposit the compensation of Rs. 7,21,000/- with interest as has been awarded by the Tribunal from the date of claim petition till the date of realization, within two months from the date of receipt of a copy of this judgment, after deducting the amount, if any, already paid or deposited. Disbursement of compensation shall be in terms of the award of the Tribunal.
MFA No. 7657/2014 and MFA Crob. No. 7/2015 do not survive for consideration and they are accordingly dismissed as devoid of merit.
The Insurance Co. is directed to deposit the compensation amount awarded by the Tribunal with interest, within two months from the date of receipt of copy of the judgment, after deducting the amount, if any, already paid or deposited.
Amount deposited by the Insurance Co. in their appeals is directed to be transmitted to the Tribunal for disbursement in favour of the claimant in terms of the award of the Tribunal.
No order as to costs.