Girijamma vs N. Krishna Reddy and Others

A.V. Chandrashekara, J.—Heard the learned Counsel for both the parties.

Perused the records. The claimant in MVC 525/2006 which was filed on MACT, Tumkur has filed this appeal.

The main grievance of the appellant is that the Tribunal has erred in adopting 50% of contributory negligence on the deceased. Another main grievance is that the compensation awarded relating to the death of her husband is grossly inadequate. The accident took place on 14.04.2006 at about 9.10 p.m. on Tumkur -Madhugiri Road near Muggondanahalli Village. The deceased Nagaraj is the husband of appellant who was the driver of Maruthi Van bearing registration No. KA-02/N-6820. When he reached near Muggondanahalli Village, one lorry bearing registration No. AP-02/U-7712 came from the opposite direction, driven by its driver in a rash and negligent manner, and dashed against the Maruthi Van, as a result, he sustained severe injuries and subsequently died.

On the basis of first information lodged by one Umashankar, a case came to be registered in FIR No. 61/2006 on the file of Koratageri Police Station for the offence punishable under Sections 279, 337, 338 and 304A IPC against the driver of lorry. Mr. Nagaraj who is stated to be an eye witness to the incident is examined as PW2. PW1 is none other than the wife of deceased. Respondents 3 and 4 are her in-laws.

Perusing the spot mahazar (Ex. P2) and the rough sketch (Ex. R12) prepared at the spot by the investigating officer, the Tribunal has come to the conclusion that the accident took place in the middle of road and therefore, the deceased was collectively responsible for the accident, therefore, the Tribunal has adopted 50% of the negligence on the deceased.

Assessing the monthly income of deceased at Rs. 3,000/-, the Tribunal has awarded in all a sum of Rs. 4,09,000/- and 50% of the same has been awarded in favour of the claimant and her in-laws. The claimant-wife has been awarded 60% of the compensation and 40% has been awarded in favour of her in-laws together. It is this judgment and award which is called in question on various grounds by the claimant.

In the lower Court records sent to this Court, the oral evidence of P.Ws.1 and 2 is not to be found. The learned Presiding Officer of MACT has not at all made discussion about the oral evidence of M Nagaraj who was stated to be an eye witness to the incident in question. The Tribunal has simply relied upon Ex. P2 - the spot mahazar and Ex. R12 - the rough sketch prepared by the investigating officer at the time of visit. The contents of rough sketch as well as spot mahazar will have to be read in the light of oral evidence of PW2. No such attempt is made by the Tribunal.

The rough sketch stated to have been prepared by the investigating officer is marked as Ex. R12 and it does not bear the date on which it was prepared, except the signature of investigating officer. The road running from Tumkur to Madhugiri runs from South to North and the Maruthi Van was found almost on the left side of said road and lorry was found on the right side of the said road from Tumkur to Madhugiri road. The rough sketch only speaks about the position of vehicle as inspected by the investigating officer at the spot. Ex. P2 - the spot mahazar was prepared by investigating officer on 15.04.2006 between 3.00 p.m. to 4.00 p.m. Admittedly, the accident took place at the night of 14.04.2006 at about 9.30 p.m.

The road in question is a public road. The possibility of separating the two vehicles for allowing free passage of the vehicles in between this period cannot be ruled out. Therefore, the position of vehicle inspected by investigating officer at the time when he drew the spot mahazar cannot be considered as the real position of the vehicles when the accident took place. It is unfortunate that the learned Judge has relied too much upon these documents (Ex. P2 and Ex. R12), without noticing the oral evidence of PW2 who was stated to be an eye witness to the said accident.

Apart from that, the police have filed the chargesheet against the driver of lorry, which is not disputed. The chargesheet has been prepared after conducting thorough investigation and the investigating officer is a responsible public officer. Nothing is placed on record to doubt the genuineness of investigation conducted by the investigating officer as well as the papers prepared by the investigating officer while submitting the final chargesheet. Therefore, the very approach of Tribunal in adopting 50% negligence on the deceased is wholly incorrect and improper.

On assessing the entire oral and documentary evidence placed on record, it has to be said that the accident took place solely due to the negligence of driver of the lorry in question. Therefore, attributing 50% negligence on the deceased is improper and incorrect and opposed to the principle to be adopted in regard to the evaluation of oral and documentary evidence.

Admittedly, the age of deceased is mentioned as 32 years in the postmortem report submitted by the concerned doctor. Ex. R3 is the certificate issued by the Head Master, Government Higher and Primary School, Madhugiri Taluk. The said endorsement discloses that he was born on 12.07.1978. There is no reason to doubt this endorsement given by the Head Master of Government Higher and Primary School in which the deceased was studying as a student. If that is taken into consideration, he was aged about 28 years. Thus, the proper multiplier applicable would be ''17''. The Tribunal has assessed the income of deceased at Rs. 3,000/-. He had a wife, parents who are dependent upon him.

The fact that the deceased was married with PW1 is forthcoming from Ex. P6 - the marriage certificate issued by the Sub Registrar, Tumkur under the Hindu Marriage Act, 1955. He was hale and healthy. Hence, the assessment of income will have to be made on the basis of preponderance and probabilities as held by the Hon''ble Apex Court held in the case of Chaturbhuj Pande and Others Vs. Collector, Raigarh, . Considering the avocation of deceased, his age and health, it would be reasonable to assess the income of deceased at Rs. 4,000/- p.m. Deducting 1/3rd towards personal expenses and adopting the multiplier ''17'', the loss of dependency would comes to Rs. 5,44,068/- (4000 x 1/3 = 1,333/- (4000 - 1,333 = 2667) x 12 x 17).

The sum of Rs. 10,000/- has been awarded under the head loss of love and affection, Rs. 10,000/-towards loss of consortium and no compensation is awarded under the head loss of estate. Therefore, a sum of Rs. 25,000/- each under these heads would meet the ends of justice. Only a sum of Rs. 5,000/- is awarded under the head funeral expenses and transportation of dead body. A reasonable amount will have to be awarded under the head and hence, a sum of Rs. 15,000/- would meets the ends of justice. Thereby, the claimant and respondents 3 and 4 are entitled to a total compensation as under:

In so far as the apportionment is concerned, the Tribunal has apportioned 60% in favour of claimant and 40% in favour of respondents 3 and 4, the father-in-law and mother-in-law. This apportionment is not proper and awarding of 70% in favour of claimant and 30% in favour of her in-laws together i.e., at 15% each would meet the ends of justice. So far as the finding in respect of contributory negligence attributed on the deceased is concerned, it has to be set aside.

Consequently, the appeal is allowed in part enhancing the compensation to Rs. 6,34,068/- to be payable by the Insurance Company. The contributory negligence of 50% on the deceased is set aside.

The claimant, respondents 3 and 4 are entitled to the interest @ 6% p.a. for enhanced compensation from the date of petition till its realization .

70% of the total amount is apportioned in favour of claimant i.e., Smt. Girijamma and remaining 30% is equally proportioned in favour of respondents 3 and 4.

In the event of deposit, the sum of Rs. 75,000/- shall be released in favour of Girijamma and similarly, 25,000/- each in favour of respondents 3 and 4. The remaining amount of Girijamma shall be deposited in any of the nationalized bank of her choice for a period of 10 years with liberty to draw accrued interest periodically from time to time.

The remaining amount of respondents 3 and 4 shall be kept in any of the nationalized bank of their choice for a period of three years with liberty to draw accrued interest periodically from time to time.

The judgment and award of the Tribunal stands modified, accordingly.