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Judgment
S.N. Satyanarayana, J.—These four appeals arise out of common judgment rendered in MVC No. 1938/2005 and connected matters which were disposed of by common judgment dated 04.12.2010 on the file of MACT, D.K., Mangaluru.
The appeal in MFA No. 3101/11 is filed by the second respondent United India Insurance Company Limited in MVC No. 1938/2005 challenging the liability. In the same judgment claimants No. 1 to 3 have come up in MFA No. 10319/2012 seeking enhancement of compensation awarded by the tribunal for the death of Abdul Rasheed in the very same accident. MFA No. 3102/11 is filed by the second respondent United India Insurance Company Limited challenging the liability fastened on it in MVC No. 66/2006. MFA No. 3103/2011 is also filed by the very same second respondent United India Insurance Company Limited challenging the liability fastened on it in MVC No. 1968/2006 which is the claim petition filed by the owner of tipper lorry bearing registration No. KA 30/2525. The main ground in this appeal is that the policy issued by the insurer being ''act only policy'', the liability is restricted only to an extent of Rs. 6,000/-.
Brief facts leading to these four appeals are as under:
On 29.05.2005 it is stated that tipper lorry bearing No. KA 30/2525 insured with National Insurance Company Limited and owned by one P. Abdul Razak who is claimant in MVC No. 1968/2006 was proceeding towards Mangaluru from Tokkotu village. It is stated that the said lorry was loaded with boulders. When the said lorry was crossing the bridge on Netravathi river near Jeppinamogaru a Santro car bearing registration No. KA 23 Z 0123 came from opposite direction. The driver of the said Santro car stated to have over taken the car which was proceeding in front of it, in the process came to the extreme right side of the bridge i.e., on the direct path of tipper lorry resulting in the driver of tipper lorry coming to the extreme right side of the road to avoid collision with the said lorry, consequently, falling into the river on its tipper side. It is stated that in the said accident two persons who were traveling in the lorry died and three others were injured. In all six claim petitions came to be filed, two by the legal representatives of deceased persons and three by injured person and one by the owner of lorry seeking recovery of money for the damage caused to his lorry. All the six claim petitions were clubbed together. After objections were filed and evidence was recorded, all the six claim petitions came to be disposed of by common judgment dated 04.12.2010. It is seen that the claim petitions in MVC No. 1938/2005, 66/2006 and 1968/2006 were allowed and compensation was awarded in all these three claim petitions. So far as claim petition which was filed in MVC Nos. 63/2007, 674/2007 and 696/2007, these three claim petitions were dismissed because that were filed by the inmates of the car contending that the injury suffered is due to rash and negligent driving of the tipper lorry since the charge sheet was only against the Santro car these three claim petitions were dismissed holding that there was no mistake on the part of the driver of the tipper lorry.
It is seen that the insurer of the offending Santro car bearing registration No. KA 23 Z 0123 has come up in these three appeals i.e., MFA Nos. 3101/11, 3102/11 and 3103/2011. The claimants in MVC No. 1938/2005 have come up in appeal in MFA No. 10319/12 seeking enhancement of compensation.
So far as the appeals filed by the Insurance Company are concerned, the first and foremost ground is that the finding of the tribunal in holding that the accident has taken place due to rash and negligent driving of the rider of Santro car is incorrect and the second thing is, the failure on the part of tribunal is in not considering the contributory negligence on the part of driver of tipper lorry which has resulted in the accident. So far as the appeal in MFA No. 3103/11 is concerned the grounds of appeal is slightly different wherein the appellant insurer in addition to other two grounds has taken one more ground in this appeal that the policy issued to cover the liability of the insured car owner is under ''liability only policy''. In that view of the matter, the compensation which can be awarded to against the insured should be restricted to Rs. 6,000/- only and not beyond that. If at all the compensation which is awarded is in excess of the same, the owner of the offending Santro car is required to answer the same.
Heard the learned counsel for the appellant Insurance Company in all the three appeals and the claimants in MVC No. 1938/2005 who are appellants in MFA No. 10319/12.
So far as the grounds urged by the appellant - insurer in MFA Nos. 3101/11 and 3102/11 does not hold water for the reason that admittedly the complaint regarding rash and negligent driving is against the driver of the Santro car which is not in dispute. It is also seen that after investigation charge sheet is filed against the driver of the Santro car. It is further seen that three claim petitions which were filed by the inmates of Santro car in MVC No. 673/2007, 674/2007 and 696/2007 are dismissed by holding that the accident is caused due to negligent driving on the part of the Santro car driver. Therefore, the claimants cannot seek compensation from the owner and insurer of the tipper lorry and the driver of which is not responsible for causing the accident. In that view of the matter, finding of the tribunal being just and proper in the facts and circumstances.
So far as appeal filed by the insurer in MFA No. 3103/11 is concerned, this is challenging the judgment and award passed in MVC No. 1968/2006 which is by the owner of damaged tipper lorry. Admittedly, the lorry belonging to claimant in the said proceedings is damaged in the accident is not in dispute. It is further not in dispute that the insurer of offending car has taken ''liability only policy'' wherein for damage caused to the property of third parties liability of insurer is only to an extent of Rs. 6,000/-. In that view of the matter, the appeal filed by the insurer of Santro car is required to be allowed in holding that the liability of appellant insurer is only to the tune of Rs. 6,000/-. So far as the compensation which is awarded in excess of that will have to be answered by the owner of the Santro Car. Accordingly, the appeal filed by the insurer in MFA No. 3103/2011 is allowed in part.
Now coming to the appeal filed by the claimants in MVC No. 10319/2012. The death of Abdul Rasheed has taken place due to injuries suffered in the accident dated 29.05.2005 is not in dispute. It is also not in dispute that he was a loader at the relevant point of time. Though the claimants have stated that he was earning Rs. 6,000/- they have not produced any proof regarding income. In that view of the matter, since the accident has taken place in the year 2005 following the normal practice in taking the income notionally at Rs. 3,000/- in case of accidents caused in the year 2005 the tribunal has rightly taken his income at Rs. 4,000/-. However, it is seen that the deceased Abdul Rasheed was aged about 30 years as on the date of accident and he died leaving him surviving his widow - first claimant aged 22 years, second claimant aged 3 years and claimants No. 3 and 4, his parents aged 60 and 65 years. It is further seen that the aged parents of deceased Abdul Rasheed died subsequent to filing of claim petition. It is only his widow and minor daughter who are surviving to receive compensation.
In the tribunal the claimants who are widow and minor child of deceased are expected to live beyond his lifetime. In the instant case, the normal practice of taking 50% of the income towards future prospects to the benefit of claimants, where the deceased is below the age of 50 is not followed. In that view of the matter, this court while accepting the income of the deceased at Rs. 3,000/- instead of Rs. 4,000/- taken by the tribunal and would add another 50% towards future prospects. With this the income of the deceased is taken at Rs. 4,500/- since the multiplier which is required to be adopted in the instance case being 17 the same is required to be multiplied by 2/3rd of the annual income of deceased to arrive at compensation for loss of total dependency to the claimants which works out as under: 4,500 x 2/3 = 3000 x 12 = 36,000 x 17 = Rs. 6,12,000/-. In addition to that the claimants are also entitled to compensation in a sum of Rs. 1,00,000/- under conventional head. With this the total revised compensation awarded to claimant is Rs. 7,12,000/- as against Rs. 5,30,000/- awarded by the tribunal.
In other words the claimants are entitled to enhanced compensation in a sum of Rs. 1,82,000/-. Out of that Rs. 1,00,000/- should be the share of first claimant widow and Rs. 82,000/- is the share of second claimant minor daughter. The enhanced compensation of Rs. 82,000/- awarded to second claimant is ordered to be deposited in any nationalized bank for a period of ten years with right to receive interest periodically by her mother for the maintenance of minor child. From out of Rs. 1,00,000/- with interest awarded to the first claimant, Rs. 30,000/- is ordered to be released in her favour and balance to be deposited in any nationalized bank for a period of five years with right to receive interest periodically. The claimants are not entitled to receive interest for the period of delay of 586 days. Accordingly, all the four appeals are disposed of.
In MFA Nos. 3101/11 and 3102/11 the amount in deposit is ordered to be sent to tribunal for disbursement to the claimants. So far as in MFA No. 3103/11 is concerned, the liability of the insurer is only to an extent of Rs. 6,000/- with interest. From out of the amount in deposit of Rs. 25,000/-, the tribunal shall release Rs. 6,000/- with interest to the claimants in MVC No. 1968/2006. The excess amount available in the said appeal is ordered to be released in favour of the insurer United India Insurance Company Limited.