Husna and Others vs P. Nagendra and Others

N.K. Patil, J.—Though these appeals are posted for Admission, they are taken up for final disposal with the consent of the learned counsel appearing for both parties.

These two appeals respectively by the claimants and the Insurer are directed against the same judgment and award dated 7th January 2015, passed in MVC No. 3790/2013, by the Member, Principal Motor Accident Claims Tribunal, Bangalore (SCCH-1), (for short, ''Tribunal'').

While the claimants have filed the appeal seeking enhancement of compensation on the ground that, the compensation of Rs. 14,56,000/- awarded by Tribunal in their favour and also the rate of interest awarded is inadequate and needs to be enhanced; the Insurer has filed the appeal, seeking to fix reasonable contributory negligence on the part of the deceased and also to reduce the compensation, on the ground that the deceased did not possess a valid and effective Driving Licence as on the date of accident and that the monthly income assessed by Tribunal is on the higher side and disproportionate to the source of income of deceased.

The facts in brief are that, the claimant No. 1 is the wife, aged about 20 years, claimant No. 2 is the minor son, aged about four months and claimant No. 3 is the mother of deceased, aged about 49 years, at the time of accident. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 6:15 P.M. on 19-01-2013, when the deceased was riding the Motor Cycle bearing Registration No. KA-04/EV-3209, along with the pillion rider from K. Channasandra to Kalkere, near Pooja Garden, K. Chanasandra Main Road, the driver of Tractor bearing Registration No. KA-03/C-5502 and Tanker bearing Registration No. KA-03/C-5503 drove the same at a high speed, in a rash and negligent manner, without following the traffic rules and tried to over take the vehicle and while so doing, hit the Motor Cycle of the deceased. As a result, the deceased fell down and back wheel hit the body of the deceased and he sustained blood injuries. Immediately, he was shifted to Kosys Hospital, Ramamurthynagar, where first aid treatment was given and later while being shifted to Sathya Hospital, Banaswadi for further treatment, unfortunately, he succumbed to the injuries in the said road traffic accident.

It is the case of the claimants that, the deceased was aged about 24 years, hale and healthy and working as a Carpenter, earning a sum of Rs. 600/- per day and was contributing the entire sum towards the family requirements. On account of the untimely and unnatural death of the deceased, the first claimant-wife has lost her life partner at an young age, the second claimant has lost the love and affection, inspiration and guidance and the mother has lost the social, financial and moral support and is deprived of seeing his future progress and therefore, they have to be compensated reasonably.

On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation against the Owner and Insurer of the offending vehicle, i.e. Tractor bearing Registration No. KA-03/C-5502 and Tanker bearing Registration No. KA-03/C-5503. The said claim petition had come up for consideration before the Tribunal on 7th January, 2015. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 14,56,000/-, under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal and also the rate of interest, the claimants are in appeal before this Court, seeking enhancement of compensation and also higher rate of interest; and the Insurer also is in appeal seeking to fix reasonable contributory negligence on the part of the deceased for not possessing a valid and effective Driving Licence as on the date of accident and to reduce the compensation considerably, on the ground that the income assessed by Tribunal is disproportionate to the source of income of deceased.

We have gone through the grounds urged in the memorandum of appeals filed by the claimants as well as the Insurer and also the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the claimants and the learned counsel appearing for Insurer, for considerable length of time.

Learned counsel appearing for claimants, at the outset submitted that, the Tribunal grossly erred in not awarding reasonable compensation towards loss of dependency as also under conventional heads on account of the death of the deceased in the road traffic accident. To substantiate the said submission, he is quick to point out that the deceased was aged about 23 years and hale and healthy prior to the accident and was working as a Carpenter, earning a sum of Rs. 600/- per day or Rs. 18,000/- per month and was the only earning member in the family. But, the Tribunal, without any basis, has assessed the monthly income of the deceased at only Rs. 9,000/-. Therefore, he submitted that reasonable monthly income of the deceased may be re-assessed considering the age, avocation, year of accident and also the number of dependents.

He further submitted that the compensation awarded by Tribunal towards conventional heads is also on the lower side for the reason that the wife was aged only about 20 years and the child was aged about only four months at the time of accident. Further, the Tribunal has not awarded any compensation towards loss of estate.

Regarding the submission of the learned counsel appearing for Insurer for fixing some percentage of contributory negligence on the part of the deceased rider of the Motor Cycle, learned counsel appearing for claimants vehemently submitted that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded a specific finding of fact at paragraphs 13, 14 and 21 of its judgment, for fixing the entire negligence on the part of the driver of the offending Tractor and Water Tanker. The said reasoning and finding recorded by Tribunal is well found and well reasoned. Therefore, interference in the same is unwarranted.

Further, he vehemently submitted that, the rate of interest awarded by Tribunal at 6% p.a. is also on the lower side as the accident has occurred on 19-01-2013. In view of the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions, at least 9% to 10% interest per annum may be awarded in the instant case, to meet the ends of justice and the impugned judgment and award be modified accordingly.

Per contra, learned counsel appearing for Insurer, inter alia contended and submitted that the Tribunal grossly erred in not fixing any percentage of contributory negligence on the part of the deceased rider of the Motor Cycle, for the reason that as per Ex. P3, Mahazar and Ex. P4, sketch, the deceased rider of the Motor Cycle also contributed to the occurrence of accident. Further, the deceased rider of the Motor Cycle also did not possess a valid and effective Driving Licence as on the date of accident. These aspects of the matter have not been looked into or considered or appreciated by Tribunal and proceeded to fix the entire negligence on the part of the Insurer. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified, fixing reasonable percentage of contributory negligence on the part of the deceased rider of the Motor Cycle.

Regarding quantum of compensation awarded by Tribunal, he submitted that the Tribunal, after assessing the monthly income of the deceased at Rs. 9,000/-, considering the age, avocation and also the year of accident and deducting 1/3rd towards the personal and living expenses of deceased and adopting multiplier of ''18'' taking the age of the deceased, awarded compensation of Rs. 12,96,000/- towards loss of dependency. In fact, the monthly income of the deceased assessed by Tribunal at Rs. 9,000/- is on the higher side for the reason that he would not be employed throughout the month. He further submitted that the Tribunal has awarded exorbitant compensation of a sum of Rs. 1,60,000/- towards conventional heads. The same is also on the higher side and liable to be reduced.

Therefore, he submitted that the impugned judgment and award passed by Tribunal may be modified, fixing reasonable percentage of contributory negligence on the part of the deceased rider of Motor Cycle and reducing the compensation considerably.

After hearing learned counsel for the parties, after careful perusal of the grounds urged in the memorandum of appeals filed by claimants and also the Insurer, the judgment and award passed by the Tribunal and after going through the original records made available, the points that arise for our consideration in these two appeals are:

1] Whether the Tribunal is justified in fixing the entire negligence on the part of the Insurer, without fixing any percentage of contributory negligence on the part of the deceased rider of the Motor Cycle?

2] Whether the quantum of compensation awarded by Tribunal is just and reasonable?

Re-Point [1]: Occurrence of accident at about 6:15 P.M. on 19-01-2013 near Pooja Garden, K. Channasandra Main Road, between the Motor Cycle bearing Registration No. KA-04/EV-3209, ridden by the deceased and the Tractor bearing Registration No. KA-03/C-5502 and Water Tanker bearing Registration No. KA-03/C-5503, and the resultant death of the deceased rider of the aforesaid Motor Cycle are not in dispute.

After perusal of the entire material available on file and after re-appreciation of the oral and documentary evidence available on file, it can be seen that as per the evidence of PW 2, the driver of the water Tanker, while over taking another vehicle, hit the Motor Cycle ridden by the deceased. It is an admitted fact that Police, after due investigation, have filed charge sheet against the driver of the Water Tanker, as per Ex. P. 2. Further, it can be seen that the sketch at Ex. P. 4, produced by the claimants and the sketch produced by the Insurer at Ex. R. 3 are one and the same. On perusal of the sketch produced on behalf of both the sides, it is clear that while entering the main road, the motor cyclist was proceeding on the left side of the road and the driver of the Water Tanker came on the right side of the rider of the Motor Cycle and after entering the main road, the driver of the offending vehicle, i.e. Tractor and Water Tanker took the said vehicle towards left side, where the motor cyclist was proceeding and hit the motor cyclist. The two sketches which are marked as Exs. P. 4 and R. 3 clearly disclose that it is on account of negligence on the part of the driver of the offending Tractor and Water Tanker that the accident has occurred and the same is not disputed by the Insurer. Further, the stand and contention taken by the Insurer is negatived on the ground that mere taking a defence that accident was occurred due to negligence on the part of the rider of the Motor Cycle is not enough and the same is to be substantiated by producing oral and documentary evidence. Further, the Tribunal opined that, the claimants have not produced the driving licence of the deceased rider of the Motor Cycle and the same is not fatal to the case of the claimants and Ex. R. 3 discloses that the deceased rider of the Motor Cycle was proceeding in the right direction on the left side of the road and driver of the offending Tractor and Water Tanker after entering the main road, took the vehicle towards the left side and dashed against the motor cyclist who was proceeding in the right direction on the left side of the road. Therefore, the Tribunal, in the absence of any contra evidence as against the evidence of PW 2, observed that it cannot form opinion with regard to contributory negligence on the part of the deceased rider of the Motor Cycle and relied upon the decision of the Hon''ble Apex Court reported in Meera Devi and Another Vs. H.R.T.C. and Others, .

Further, regarding the reliance placed by the Insurer on the decision of this Court in M.F. A. No. 30284/2008 for fixing 25% contributory negligence on the part of the deceased rider of the Motor Cycle, the Tribunal rejected the said contention of the Insurer holding that, as per two sketches at Exs. P4 and R3, when there is no negligence on the part of the deceased rider of the Motor Cycle and there is entire negligence on the part of the driver of the Tractor and Water Tanker in causing the accident, question of fixing any percentage of contributory negligence on the part of the deceased rider of the Motor Cycle does not arise. Accordingly, after critical evaluation of the oral and documentary evidence available on file, the Tribunal held that the Insurer is liable to indemnify the entire compensation for the rash and negligent act of the driver of the Tractor and Water Tanker insured with it. The said finding of fact recorded by Tribunal at paragraphs 15 and 21 is just and proper and does not call for interference. Accordingly, we answer point No. [1] in the ''Affirmative'', holding that the Tribunal is justified in fixing the entire negligence on the part of the driver of the Tractor and Water Tanker insured with the Insurer and directing the insurer to indemnify the entire award amount.

Re-Point [2]: After careful perusal of the entire material available on file, it emerges that occurrence of accident and the resultant death of the deceased are not in dispute. It is also not in dispute that, the claimants are none other than the wife was aged about 20 years, minor child was aged about four months and mother was aged about 49 years at the time of accident. The deceased was aged about 23 years and working as a Carpenter. It is stated that he was earning a sum of Rs. 600/- per day or Rs. 18,000/- per month. But, the same is not substantiated by producing any additional oral and documentary evidence. In the absence of the credible documentary evidence, the Tribunal, taking into consideration the age, avocation and also the year of accident, has assessed the monthly income of the deceased at Rs. 9,000/-. The same is just and proper and it does not call for interference.

Further, considering the number of dependents, the Tribunal has deducted 1/3rd towards the personal and living expenses of the deceased and adopting multiplier of ''18'' for the age of the deceased, awarded compensation of Rs. 12,96,000/- towards loss of dependency (i.e. Rs. 6,000/- x 12 x ''18''). The same is just and proper and it does not call for interference by this Court.

However, the Tribunal has grossly erred in not awarding reasonable compensation under the conventional heads. A sum of Rs. 1,60,000/- awarded under the conventional heads is on the lower side and liable to be re-determined. Admittedly, the deceased has left behind his wife, aged about 20 years, minor child aged about 4 months and mother aged about 49 years, at the time of accident. In view of his untimely and unnatural death, the family is totally displaced and they are under severe financial crisis. Therefore, having regard to the facts and circumstances of the case and considering the status and age of the claimants, we award a sum of Rs. 1,00,000/- towards loss of consortium as against Rs. 50,000/-; Rs. 1,50,000/- towards loss of love and affection at the rate of Rs. 50,000/- to each claimant as against Rs. 1,00,000/- and Rs. 25,000/- towards transportation and funeral expenses as against Rs. 10,000/- and Rs. 25,000/- towards loss of estate as the Tribunal has not awarded any compensation under this head. Thus, in all, the claimants are entitled to a sum of Rs. 3,00,000/- under the conventional heads as against Rs. 1,60,000/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 1,40,000/-.

Further, as rightly pointed out by learned counsel appearing for claimants, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 19-01-2013. Therefore, as per the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions and also considering the facts and circumstances of the case, we deem it fit and proper to award rate of interest at 9% per annum as against 6% per annum, awarded by Tribunal, on the entire compensation.

Thus, the claimants are entitled to an additional compensation of a sum of Rs. 1,40,000/- with interest at 9% per annum, on the entire compensation of Rs. 15,96,000/-, from the date of petition till the date of realization.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Insurer is dismissed as being devoid of merit.

The impugned judgment and award dated 7th January 2015, passed in MVC No. 3790/2013, by the Member, Principal Motor Accident Claims Tribunal, Bangalore (SCCH-1), is hereby modified, awarding compensation of a sum of Rs. 15,96,000/- with interest at 9% per annum, from the date of petition till the date of realization as against Rs. 14,56,000/- with 6% p.a. awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 1,40,000/- with 9% interest per annum on the entire compensation of Rs. 15,96,000/-;

The Insurer is directed to deposit the enhanced compensation of Rs. 1,40,000/- with interest at 9% per annum, on the entire compensation of Rs. 15,96,000/- from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment;

The apportionment and the manner of disbursement ordered by Tribunal in respect of the compensation awarded by it remain undisturbed;

Immediately on deposit of the enhanced compensation with interest at 9% on the entire compensation of Rs. 15,96,000/-, by the Insurer, a sum of Rs. 1,00,000/- shall be invested in Fixed Deposit, in the name of the first claimant/wife of deceased, in any nationalized or scheduled or Grameena Bank, for a period of ten years, renewable by five years, with liberty reserved to the first claimant to withdraw the periodical interest;

Remaining sum shall be released in favour of the claimant Nos. 1 and 3, in equal proportion, immediately.

The amount in deposit by the Insurer in M.F.A. No. 3446/2015 shall be transmitted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly.