G. Shirisha vs Rajaiah Gujjula

K.L. Manjunath, J.—These two appeals arise out of the judgment and award passed by the MACT, Bangalore, dated 07.06.2012 in MVC No. 5432/2008. MFA No. 2803/2013, is filed by the widow of the deceased being aggrieved by the quantum of compensation awarded and apportionment in equal proportion between the widow and the aged mother. The connected appeal is filed by the Insurance Company challenging the quantum of compensation, so also the liability. Therefore, these two appeals are heard together.

The claim petition was filed by the parents and the younger brother of the deceased. The appellant-widow was arrayed as respondent No. 3 before the Tribunal. The claim petition was lodged on account of the death of one Sharath Chandra Gujjula, who died in a road traffic accident occurred on 03.09.2007, at about 1.15 p.m. According to the claimants, the deceased was riding the motor cycle bearing registration No. KA-01-S-7599, and the appellant Smt. Shirisha, the wife was a pillion rider. When they were near Spice Garden, Munnekolale Bridge, Marathahalli, a lorry bearing registration No. KA-19-2066, was coming from west to east direction in rash and negligent manner, suddenly the driver took the vehicle to his right side and dashed against the goods auto rickshaw bearing registration No. KA-01-B-5956, which was proceeding in the same direction i.e., ahead of the lorry and the said auto rickshaw in turn dashed against the other auto goods tipper bearing registration No. KA-03-C-2980, then the offending lorry proceeded further and dashed against the deceased motor cycle and thereby causing the accident. Due to which the deceased sustained fatal injuries and he was admitted to Akshaya Malya Hospital and thereafter referred to Manipal Hospital, where he succumbed to the injuries on 22.09.2007.

A criminal case was registered by the police against the driver of the tempo which has been insured by the appellant in the connected matter. The deceased was an engineer, graduated from Kakatiya University, Warrangal. He was working as a Software Engineer, aged about 25 years, getting an annual salary of Rs. 9,42,867/- per annum. The insurance company contended that the accident did not occur due to rash and negligent driving of the driver of the lorry and the other contention is that the driver did not possess a valid driving licence to drive the vehicle and hence liability of the insurance company has to be exonerated. In order to prove their respective contentions, two witnesses were examined PW-1 is the mother of the deceased, PW-2 is examined on behalf of the employer to prove the income of the deceased. Except producing the insurance policy, no evidence is let in by the insurance company.

The Tribunal held that the accident occurred due to rash and negligent driving of the driver of the goods vehicle and awarded compensation of Rs. 96,47,240/- and apportioned the income equally between the widow and mother of the deceased. Therefore, these two appeals are filed.

The main contention of the counsel for the insurance company is that an error is committed in holding that the accident occurred due to rash and negligent driving of the driver of the goods tempo. According to him, the widow of the deceased was pillion rider and she was the best witness to explain the circumstances under which the accident occurred and due to non-examination of the widow of the deceased, the Tribunal has committed an error in holding that the accident occurred due to rash and negligent driving of the driver of the goods vehicle. Therefore, he contends that the liability on the insurance company to be set-aside. He further contends that the quantum of the compensation awarded by the Tribunal is on higher side.

The contention of the claimant before us is that the loss of dependency awarded by the Tribunal is on lower side and the Tribunal has also committed an error in deducting 40% of the income towards the income tax and the compensation awarded on conventional heads are also on lower side. He further contends that apportioning the compensation equally between the aged mother and the young widow aged 25 years is liable to be set-aside.

Having heard the counsel for the parties, we have to consider the following two points in this appeal:

"i. Whether the accident occurred due to rash and negligent driving of the goods vehicle?

ii. Whether the compensation awarded by the Tribunal requires to be interfered with?"

So far as point No. 1 is concerned, though the counsel for the appellant-insurance company is questioning the liability, the appeal of the insurance company has to be dismissed solely on the ground that the appellant-insurance company has given up its claim against the owner of the goods vehicle. The appellant counsel on 16.04.2013 had filed a memo to dispense the notice to the owner of the vehicle. Accordingly, an order is passed as under:

"2. In the light of the statements made in the memo and for the reasons stated therein, notice to 4th respondent is dispensed with at the risk of the appellant."

In view of the specific order passed by this court, when the counsel for the insurance company has sought to dispense notice to the owner of the vehicle at his risk, he cannot be permitted to contend that the liability of the insurance company has to be exonerated. In addition to that even though he contends that the accident did not occur due to rash and negligent driving of the goods vehicle, since the charge-sheet is filed against the driver of the goods vehicle by the police after investigation and the same is not questioned by the insurance company or by the driver and in view of the non-examination of the driver of the goods vehicle, we have to draw an adverse inference against them. Therefore, there is no substance in the contention of the insurance company that the accident was not caused by the driver of the goods vehicle. Accordingly, point No. 1 is answered against the insurance company.

So far as second point is concerned, the appellant counsel has filed certain documents to show the income of the deceased. In view of the additional documents produced, we are of the view that the same has to be reconsidered by the Tribunal afresh by giving opportunity for both the parties. We are also of the view that apportioning the compensation equally between the widow and that of the mother of the deceased by the Tribunal has to be interfered with. Normally, the Tribunal is required to consider the age of the mother and the age of the widow and dependency of each of them. In the instance case, the appellant widow is an educated lady and is gainfully employed. The marriage has taken place just few months prior to the date of the accident and there are every possibility of the appellant getting remarried and in view of the same and considering the background, we are of the view that the same shall be apportioned at the ratio of 60% and 40% between the widow and the mother, respectively.

In the result, the appeal filed by the insurance company in MFA No. 8783/2012 is dismissed and MFA No. 2803/2013 is allowed. The matter is remanded to the Tribunal for fresh consideration to award just and fair compensation permitting the parties to let in evidence. Further, the apportionment of the compensation between the widow and the mother is modified holding that they are entitled for ratio of 60% and 40 % respectively. The amount in deposit if any, is ordered to be transmitted to the Tribunal. The parties shall appear before the Tribunal on 02.02.2015.