K. Anusha and Others vs Mohamed Imran and Others

N.K. Patil, J.—This appeal by the claimants is directed against the impugned judgment and award dated 5th February 2013 passed in M.V.C. No. 190/2011 on the file of the II Additional Senior Civil Judge & Addl. MACT-VI, Chitradurga (hereinafter referred to as ''the Tribunal'' for brevity).

The Tribunal by its judgment and award awarded a compensation of Rs. 16,72,800/- with interest at 6% p.a. from the date of petition till the date of realization, on account of the death of one E.N. Dhanvantri, by fixing 50% contributory negligence each on the part of the driver of the lorry and the driver of the car. It is the case of the claimants/appellants that fixing 50% on the part of the driver of the car, in which the deceased was traveling, is disproportionate and same is liable to be modified and the entire liability has to be fastened on the driver of the lorry alone and that the rate of interest awarded by the Tribunal @ 6% per annum is also on the lower side and in the light of the decisions of the Apex Court and also this Court, the rate of interest should be awarded at least @ 9% to 10% per annum.

Being aggrieved by the inadequate compensation, rate of interest and also contributory negligence fixed by the Tribunal, the appellants have presented this appeal.

Brief facts of the case are:

"The appellant No. 1/wife and appellant Nos. 2 and 3 being the minor children of one E.K. Dhanvanthri have filed a petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 5,00,00,000/- on account of untimely death of the deceased on 10.2.2011 at about 4.30 a.m. While the deceased was traveling along with his driver in his car bearing registration No. KA-05/Z-5867 from Bangalore, in order to go to Davangere, near Murugharajendra Mutt Tank Bund on NH-4 road, all of a sudden, the driver of the lorry bearing registration No. KA-16/A-4420 stopped the lorry without giving any signal or indication. Due to the impact, the car dashed against the lorry. The deceased, who sustained fatal injuries, died on the spot and the car was also completely damaged.

It is their further case that, the deceased was the only bread earner of the family. His wife, who was aged 22 years, has lost her life partner in her young age and the minor children, both aged about 11 months have lost guidance and love and affection of their father. Further it is the case of the appellants that the deceased was aged 32 years, working as a Design Engineer in a Private Limited Company and that he was an income tax assessee and his gross salary was Rs. 3,36,427/- per annum, out of which Rs. 32,368/- had been paid as income tax. The untimely death of the deceased has affected the social and economic condition of the family. Taking all these factors into consideration, the claimants have filed a petition seeking compensation."

The said matter came up for consideration before the Tribunal. The Tribunal after due consideration of the oral and documentary evidence has allowed the petition in part by fixing 50% contributory negligence each on the part of the driver of the car and on the part of the lorry by recording a finding of fact in paragraphs-11 and 12 of the impugned judgment, and taking net income of the deceased, adding another 10% towards future prospects of the deceased and deducing 10% towards income tax has awarded a sum of Rs. 33,05,600/- towards loss of dependency and Rs. 40,000/- towards conventional heads, in all awarded Rs. 33,45,600/- and by attributing 50% of contributory negligence, it has awarded Rs. 16,72,800/- with interest @ 6% per annum from the date of petition till realization. Being dissatisfied with the impugned judgment and award passed by the Tribunal, appellants have presented this appeal seeking enhancement of compensation.

The submission of the learned Counsel appearing for the appellants, Sri. S.B. Halli for Sri. B.M. Siddappa, at the outset, is that the Tribunal has erred in not adding 50% towards future prospects since the deceased was aged about 32 years, in the light of the judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and that the compensation awarded towards loss of dependency and the conventional heads is also on the lower side and requires to be enhanced after deducing the income tax and also deducting 1/3rd towards personal expenses of the deceased. Further he vehemently submitted that, the reasoning given at paragraphs 10, 11 and 12 of the impugned judgment, fixing contributory negligence @ 50% on the part of the driver of the car is not sustainable. The Tribunal is justified in fixing contributory negligence on the part of the drivers of both the vehicles involved in the accident after considering the oral and documentary evidence, such as, Exs.P3, P6, P7 to P10/spot mahazaar IMV report and photographs, etc.,.

As against this, learned Counsel appearing for respondent No. 2/insurer Sri. O. Mahesh submitted that substantial amount has been awarded by the Tribunal after due consideration and evaluation of the oral and documentary evidence and keeping in view the age, avocation and year of the accident, the Tribunal is justified in fixing contributory negligence at 50% each on the part of both drivers of car and the lorry, by assigning valid and cogent reasons in paragraphs-10 to 12 of the impugned judgment and award and hence, interference by this Court is not called for. He further pointed out that, the Tribunal is also justified in awarding reasonable compensation towards loss of dependency and conventional heads.

As regards adding 50% towards future prospects of the deceased, he contended that the ratio of law laid down in the judgment of the Apex Court in Sarla Verma''s case (supra) is not applicable to a person working in Private Limited Company and he cannot be equated with a staff working in Central/State Government Departments and this has been rightly considered by the Tribunal and in fact, the Tribunal has added 10% towards future prospects, which cannot be sustained. However, having regard to the totality of case on hand, the said finding of fact recorded by the Tribunal does not call for interference nor the appellants have made out a good ground to interfere with the impugned judgment and award. Hence, the appeal may be dismissed as devoid of merits.

After critical evaluation of the oral and documentary evidence available on record and considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the points that arise for our consideration are:

"1. Whether the Tribunal is justified in fixing contributory negligence at 50% each on the part of the drivers of car and lorry?

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

Re. Point No. 1:

"The occurrence of the accident and the death of the deceased in the accident are not in dispute. The Tribunal after careful consideration of the oral and documentary evidence and other records has considered elaborately the oral evidence of PW-1, PW-2 and RW-1 and also the supporting documentary evidence viz., Exs.P1 to P6/FIR, complaint, spot mahazar, postmortem report, inquest report and IMV report and also Ex. P22/spot sketch and has assigned valid and cogent reasons in paragraphs-10 to 12 of the impugned judgment and specifically observed that admittedly the spot where the lorry was parked is not a parking place. It is a highway. If there was any technical problem, the driver of the lorry ought to have parked the same on the left side of the road, by giving proper indication/signal of any nature that would reasonably indicate that a vehicle is parked on the road. Admittedly, the same has not been done. Further it was specifically observed that at 4.30 a.m., there will be full dark and only after 5.30 a.m. or 6.00 a.m., the natural light will spread over. If really the vehicle was not parked on the highway, even if the driver of the car came with high speed, the accident would not have been occurred. Therefore, it is clear that the contribution of the driver of the lorry is also equal to the cause of accident. If the driver of the car was vigilant and cautious and driven the vehicle carefully, following the traffic rules, he could have also saved the life of deceased and also if the driver of the car was driving the car in a moderate speed by following the traffic rules and regulations, he could have controlled the vehicle before hitting the lorry. Therefore, in our considered opinion, the contributory negligence of the driver of the car is also equal to that of the driver of the lorry. After perusal of the oral and documentary evidence produced by both parties, it emerges that the accident has occurred due to the negligence on the part of drivers of both vehicles, which were involved in the accident. Therefore, the Tribunal is justified in fixing 50% contributory negligence on the part of drivers of both vehicles by recording a specific finding of fact. We find substance in the submission and the ground taken by the learned Counsel for the appellants. Hence, interference in the impugned Judgment and Award passed by the Tribunal is not called for."

Re. Point No. 2:

"It is the case of the appellants that the first appellant is the wife and appellant Nos. 2 and 3 are minor children of the deceased. They have filed a claim petition under Section 166 of the M.V. Act claiming compensation against the respondents contending that the deceased was aged 32 years, working as a Design Engineer in a Private Company and declared his gross annual income for the assessment year 2009-10 as Rs. 3,36,427/- out of which he has paid income tax of Rs. 32,368/- and if the said amount is deducted, remaining net amount comes to Rs. 3,04,060/-. Since the claimants are three in number, if 1/3rd (Rs. 1,01,353/-) is deducted towards personal expenses of the deceased, the net amount comes to Rs. 2,02,707/-. The deceased was aged 32 years and the appropriate multiplier would be ''16''. Accordingly, we re-determine the loss of dependency at Rs. 32,43,312/- (i.e., Rs. 2,02,707/- x ''16'') as against Rs. 33,05,600/- awarded by the Tribunal."

As rightly pointed out by the learned Counsel for the appellants, the Tribunal has committed an error in not awarding reasonable compensation towards conventional heads. It is seen that the appellant No. 1/wife aged 22 years has lost her husband at her young age and two minor children, both aged about 11 months have lost love and affection and guidance of their father and the claimants suffered mental pain and agony. Deceased was the only bread earner in the family. The said facts are supported by the evidence on record. Taking these aspects into consideration and the submission of the learned Counsel and the judgments of the Apex Court and this Court, we deem it proper to award Rs. 1,00,000/- towards loss of consortium; Rs. 75,000/-@ Rs. 25,000/- to each claimants towards love and affection; Rs. 25,000/- towards loss of estate and another Rs. 25,000/- towards funeral and obsequies expenses. In all, the compensation comes to Rs. 34,68,312/-, out of which if 50% is deducted towards contributory negligence on the part of the driver of the car, the appellants are entitled to total compensation of Rs. 17,34,156/- as against Rs. 16,72,800/-. Hence, there would be enhancement of Rs. 61,356/-.

Further, as vehemently argued by the learned Counsel for the appellants, the rate of interest awarded by the Tribunal @ 6% per annum is on the lower side. The accident has occurred on 10.2.2011. In the light of the judgments of the Apex Court and this Court, the rate of interest shall be awarded @ 9% p.a. on the entire compensation.

For the foregoing reasons, the instant appeal filed by the appellants is allowed in part.

The judgment and award dated 5th February 2013 passed in M.V.C. No. 190/2011 on the file of the II Additional Senior Civil Judge & Addl.MACT-VI, Chitradurga, is hereby modified, awarding additional compensation of Rs. 61,356/- with interest at the rate of 9% p.a. on the entire compensation from the date of claim petition till realization.

The second respondent/insurer is directed to deposit the enhanced compensation amount along with interest at 9% p.a. on the entire compensation from the date of petition till the date of realization, within 3 weeks from the date of receipt of the copy of this judgment and award.

The enhanced compensation of Rs. 61,356/- with full interest shall be released in favour of the appellant No. 1 immediately on deposit made by the second respondent.

Office to draw the award, accordingly.