B.K. Preethi vs C.N. Amresh Kumar

K.L. Manjunath, J.—These two appeals arise out of the judgment and award passed by the M.A.C.T., Bangalore, dated 6.3.2012, in M.V.C. No. 3185/2010.

The claimants and the Insurance Company are in appeal being not satisfied with the award passed by the Tribunal. Therefore, these two matters have been clubbed together.

The facts leading to these appeals are as hereunder:

"The claim petition is filed by the widow and two minor children of one Shivakumar who died in a road traffic accident that occurred on 2.3.2010 at about 11.30 a.m. near Maderahalli gate on Kolar-Bangalore N.H. 4. According to the claimants, the deceased was aged 46 years of age as on the date of accident. He was an employee in Government of India Undertaking, drawing salary of Rs. 60,000/- per month. According to the claimants, he was driving his car bearing No. AP-31-BB-9603 towards Bangalore from Visakhapatnam via Kolar on N.H. 4, when he was near Maderahalli gate, from the opposite direction, a goods vehicle TATA Ace bearing No. KA-53-3950 was coming in a rash and negligent manner and the driver of the goods vehicle took his vehicle to his extreme right side and dashed against the car of Shivakumar. Due to the impact, he sustained grievous injuries. In addition to him, other family members who were travelling with him were also injured. He was immediately shifted to S.N.R. District Hospital, Kolar and thereafter, he was referred to R.L. Jalappa Hospital, Kolar. On the way to the hospital, he succumbed to the injuries. Therefore, the claimants have filed a complaint. On the complaint lodged, FIR was registered against the driver of the TATA Ace goods vehicle by the Kolar Rural Police in Cr. No. 64/2010 for the offences punishable under sections 279, 337 and 304(A) of IPC."

The owner and insurer of the TATA Ace goods vehicle contested the matter. According to them, there was no negligence on the part of the driver of the goods carrier and he is not at all responsible for the cause of the accident. According to them, a false police complaint was lodged against their driver and that they are not liable to pay compensation. The Insurance Company further contended that the liability of the Insurance Company would be subject to the driver of the goods vehicle possessing an effective valid license and fitness certificate.

Based on the above pleadings, the parties went into trial. To prove their respective contentions, on behalf of the claimants, the widow of the claimant was examined as PW.1 and one M.K. Bhandari was examined as PW.2. In support of their claim before the Tribunal, the claimants have produced exhibits P1 to P17. On behalf of the Insurance Company, one Shivananda was examined as RW.1. The driver of the vehicle was examined as RW.2. In addition, they also relied upon the evidence of RW.3 and RW.4 and produced exhibits R1 to R3.

The Tribunal after considering the evidence let in by the parties, held that the accident occurred due to the rash and negligent driving of the driver of TATA Ace goods carrier and awarded total compensation of Rs. 59,09,646/-.

Aggrieved by the finding of the Tribunal on the question of negligence against the driver of the goods vehicle and also contending that the quantum of compensation awarded by the Tribunal is on the higher side, the Insurance Company has filed appeal. So also, being aggrieved by the quantum of compensation awarded by the Tribunal is on the lower side, the claimants have filed appeal for enhancement of compensation. Therefore, these two matters have been clubbed together.

The contentions of Sri. A.N. Krishna Swamy, Advocate, who is appearing for the Insurance Company are as hereunder.

According to him, the accident did not occur due to rash and negligent driving of the driver of the goods vehicle. The deceased Shiva Kumar who was driving the car while trying to overtake the tipper lorry which was ahead of him, came to the right side of the road and lost control over the vehicle and first hit the tipper lorry and thereafter, dashed TATA Ace vehicle and due to the said impact, the deceased sustained severe injuries and succumbed to the same. As such, liability saddled on the Insurance Company has to be exonerated. He submitted that the sketch - Ex. P5 prepared by the Police during investigation is incorrect one. He submitted that the evidence of RW.2 D.M. Anjinappa, driver of the TATA Ace has not been properly considered. He submitted that the Tribunal erred in holding that the driver of the insured TATA Ace is solely responsible for the cause of accident and same is not based on proper appreciation of evidence and documents produced and therefore, the same is liable to be set-aside. Further he submitted that the accident occurred due to contributory negligence of both the drivers of car and TATA Ace vehicle and as such, the compensation awarded by the Tribunal in favour of the claimants requires to be reduced.

Per contra, learned counsel for the claimants submits that for the first time, the appellant -Insurance Company is contending that the deceased Shiva Kumar who was driving his car was making an attempt to overtake the tipper lorry which was going ahead of him and dashed against the tipper lorry and crossing the road took his vehicle to the extreme right side. According to him, such a contention was not raised in the pleadings of the owner of the vehicle or the Insurance Company. If there was a collision between tipper lorry and car of the deceased, the police would have implicated the tipper lorry. He further submits that if really claimants were injured on account of car dashing against the tipper lorry and thereafter dashing against the goods vehicle, they would have necessarily pleaded the same in their pleadings and also deposed in their deposition that the deceased dashed against the tipper lorry which was proceeding ahead of their car. Therefore, he contends that there is variation between the pleadings and evidence let in. He further submitted that Ex. P5 -spot sketch prepared by the Police is not questioned by the Insurance Company or the owner. The driver of the goods vehicle has been charge-sheeted. A perusal of Ex. P5 makes it clear that the goods vehicle had crossed right median to its further side and dashed against the car which was coming from the opposite direction and therefore, the contention of the Insurance Company is incorrect. He further submitted that the compensation awarded by the Tribunal is on lower side and requires to be enhanced.

Having heard the learned counsel for the parties, what would be considered by us in this appeal are as follows:--

"(1) Whether the liability saddled on the Insurance Company requires to be modified?

(2) Whether the claimants are entitled for enhanced compensation?"

So far as point No. (1) is concerned, as rightly pointed out by the learned counsel for the claimants that either of the driver of the goods vehicle or the Insurance Company have not contended before the Tribunal that the accident occurred on account of an attempt made by the deceased to overtake the tipper lorry which was proceedings ahead of him and dashing car against the tipper lorry and thereafter, turning his vehicle to the extreme right side as contended by them. They have also referred to the evidence of RW.2-driver of goods vehicle. The Tribunal has considered the evidence of the driver of the goods vehicle. RW.2 -driver of the goods vehicle admits that for the first time in the evidence he is mentioning involvement of the tipper. Therefore, we are of the view that the contention of the Insurance Company that the deceased first dashed against the tipper lorry and thereafter dashed goods vehicle cannot be believed. Accordingly, we reject the same.

Having rejected the contention of the appellant-Insurance Company with regard to the manner in which the accident had taken place, what is to be considered by us is, whether there was contributory negligence of the driver of the goods vehicle and the deceased. So far this point is concerned, Ex. P5 is the sketch prepared by the Police during investigation. As per the sketch, car was at extreme left side and the goods vehicle which was coming from opposite direction, crossing the road median, dashed against the opposite vehicle. Therefore, this Court is of the opinion that in view of the charge sheet filed against the driver of the goods vehicle and sketch prepared, contributory negligence cannot be attributed to the deceased. In the circumstances, point No. 1 is held against the Insurance Company and the finding of the Tribunal is upheld.

So far as point No. 2 is concerned, admittedly the Tribunal has awarded Rs. 50,000/- towards loss of estate, loss of consortium, loss of love and affection and transportation and funeral expenses which according to us is on lower side. Therefore, the claimants are entitled for further sum of Rs. 1,50,000/- with interest at 6% per annum under the conventional heads.

So far as loss of dependency is concerned, we have examined the judgment of the Tribunal and so also evidence let in by the claimants. The Trial Court has rightly computed loss of dependency based on the actual salary received by the deceased and considering his age, 30% of the same has been added towards future prospects and has applied the multiplier of ''13''. Therefore, computation of loss of dependency cannot be found fault with.

In the result, MFA No. 6273/2012 is allowed in part. The claimants are entitled for enhanced compensation of Rs. 1,50,000/- with interest at 6% per annum. The entire amount shall be paid to the widow of the deceased.

MFA No. 7241/2012 is dismissed.

The amount in deposit is directed to be transmitted to the Tribunal.