United India Insurance Company Ltd. vs V. Vijaya Laxmi

Dr. B. Siva Sankara Rao, J.—The 2nd respondent-Insurer (United India Insurance Company Limited), among two respondents including the owner of the lorry AP28 U 9546 (original registration KA 39 0451) in M.V.O.P. No. 757 of 2003 on the file of the learned Chairman of the Motor Accidents Claims Tribunal-cum-District Judge, Ranga Reddy, L.B. Nagar (for short, ''Tribunal'') filed u/s 163A of the Act, by the claimants 6 in number viz., wife, three minor children, physically handicapped major brother and mother, preferred the appeal impugning the compensation awarded by the tribunal of Rs. 2,91,000/-with interest at 7.5% p.a. by award dt.18.10.2006 with the contentions in the grounds of appeal that the tribunal gravely, erred in not considering the factum of contributory negligence on the part of the driver of the auto in which the deceased was traveling among others, that there were more than six persons traveling at the time of accident in that auto that there is head on collusion between the auto and the lorry of 1st respondent, that the accident occurred admittedly while proceeding in opposite direction of both vehicles, tribunal gravely erred in ignoring these facts in not fixing contributory negligence if not total negligence of auto driver, that the tribunal went wrong in the claim u/s 163-A for no proof of income of the deceased in taking Rs. 24,000/- p.a. instead of schedule-II speaks Rs. 15,000/- and multiplier 16 adopted for the deceased aged about 35 years is also wrong and rate of interest at 7.5% p.a. is excessive hence to set aside the award and reduce the compensation fixing contributory negligence so also rate of interest. The learned counsel for the insurer reiterated the same in the course of hearing.

Whereas, it is the contention of the claimants, who also filed cross-objections vide Cross Objections (SR) No. 50737 of 2007 impugning the quantum of compensation awarded by the tribunal was utterly low for as prayed for and contended that the Cross-Objections may be allowed by enhancing compensation and by dismissing the claim for any contributory negligence on the part of the driver of the auto for mere overloading is not a condition to attribute any contributory negligence as rightly concluded by the tribunal.

Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

Now the points that arise for consideration in the appeal are:

Whether there is any contributory negligence on the part of the driver of the auto in which the deceased was traveling as contended by the insurer/appellant, if so, what is the quantum of compensation the claimants are entitled and whether the compensation awarded by the tribunal is excessive so also rate of interest or utterly low and if so what is the compensation entitled as per the structured formulae, under schedule-II?

To what result?

Point No. 1:

The fact that at the time of the accident in the passenger auto with seating capacity of 3+1 there were 6 to 7 persons including the deceased traveling not in dispute, so also the fact of both the vehicles while coming in opposite direction i.e. lorry of 1st respondent and the auto in which the deceased and others were traveling, the accident was occurred on the fateful day 21.05.2003 at about 6.15 hours in the day time (at dawn). It is also not in dispute from the very evidence let in by the claimants through P.W.2 of the deceased fell down and crushed under the wheels of the lorry and such fall arisen for his sitting in the front seat otherwise not as only person fallen down and not any other. Even said evidence of P.W.2 was ignored by the tribunal from consideration. In fact, as contended by the insurer supported by the expression of the Apex Court in NIC Vs. Sinitha even in the claim u/s 163-A by virtue of clause (2) is equal to clause 3 of section 140 though the claimants need not establish any rash or negligent act or default of the owner of the vehicle or any other person concerned with the vehicle, for no such clause similar to Section 140-(4) in Section 163-A, there is no taking away the defence of the insurer or owner of the vehicle to raise contributory or composite negligence of the opposite vehicle or negligence on the part of the deceased. Having regard to the above, for no dispute on the proposition and from the factual matrix show there is contributory negligence on the part of the deceased also in sitting at the front seat of auto so inconveniently without sufficient space at the single seat meant for driver alone, but for that fall could not be arisen. Contributory negligence depends upon different factors including width of the road, condition of the road and size of the vehicles and the place where exactly the accident taken place from the manner of accident, with reference to scene observation report and M.V.I. report regarding respective damages of vehicles. Here, there is no other data available but for the facts discussed supra. On fall from the auto by the deceased sat at front by side of driver at the accident, as crushed under the wheels of the lorry is established so also from the Ex.A.6 P.M. report of crush injuries, it is just to fix 25% contributory negligence on the part of the auto driver, owner and of the deceased and the remaining 75% to fix is on 1st respondent-owner and 2nd respondent-insurer of the lorry and also for risk covered by Ex.B.1.

From this coming to the quantum of the compensation, the deceased, as per the claimants, aged 35 years though Ex.P.6 M.V.I. report speaks 32 years from estimate and the tribunal also taken 35 years and as per the schedule -II the multiplier applicable for a person upto 35 years as 17 and above 36 years is 16, hence 16.5 is the just multiplier to adopt at least and not the 16 as taken by the tribunal. No doubt as pointed out by the learned counsel for the insurer for the claim filed u/s 163-A in the absence of proof of earnings admittedly no proof of the earnings of the deceased by worth evidence as also concluded by the tribunal; the tribunal ought to have taken 15000/- the minimum as per the schedule II. In fact, the latest expression of the apex court in Kishan Gopal Vs. Lala at page 257 para 39 held that section 163-A itself speaks for time to time increase of the minimum amount of earning capacity to be taken that was not done thereby from the increase in the cost living index it is to be taken as Rs. 30,000/- instead of Rs. 15,000/-. By taking consideration of the same, earnings of deceased taken at Rs. 30,000/-p.m. and even the claimants are 6 in number as per the schedule II, the personal expenses deduction of deceased is 1/3rd irrespective of number of claimants or dependants. It comes to Rs. 20,000/- x 17= Rs. 3,40,000/-. Apart from it, Rs. 5000/-+Rs.2500/-+2000/- towards loss of consortium, loss of estate and funeral expenses to be awarded comes to Rs. 9,500/, it all comes to Rs. 3,49,500/- even rounded to Rs. 3,50,000/-, 25% if deducted, 75% liability of respondents come to Rs. 2,62,500/- and what the tribunal awarded of Rs. 2,91,000/- is reduced however the rate of interest is upheld from the settled proposition of law in TN Transport Corporation v. Raja Priya, Sarla Verma v. Delhi Transport Corporation and from the latest expression of the Apex Court in Rajesh v. Rajbir Singh.

Point No. 2:

In the result, appeal is partly allowed modifying and reducing the quantum from Rs. 2,91,000/- to Rs. 2,62,500/- with interest at 7 1/2% p.a. The Cross-objections are dismissed. Rest of the terms of the award holds good. There is no order as to costs.

Consequently, miscellaneous petitions, if any pending in this appeal, shall stand closed.