Kamala Bai and Others vs Subramani V. and Others

N.K. Patil, J—These two appeals respectively by the claimants and by the Insurer of the Car are directed against the same impugned judgment and award dated 28/02/2013, passed in MVC No. 36/2012, by the Senior Civil Judge and Motor Accident Claims Tribunal, Chitradurga, (for short ''Tribunal'').

The Tribunal, by its judgment and award, has awarded a sum of Rs. 7,37,200/- (wrongly shown as Rs. 7,37,600/-)under different heads with interest at 6% per annum from the date of petition till its deposit, as against the claim Rs. 60,00,000/-, on account of the death of the deceased Sri. Bheemanaika, in the road traffic accident, fastening liability in the ratio of 50% each on the part of the drivers of both the vehicles and directing the respective Insurer to indemnify the award amount.

It is the case of the claimants that, the compensation awarded by the Tribunal is inadequate and it requires enhancement and whereas, it is the case of the Oriental Insurance Company Limited, Insurer of the Car, that the Tribunal has erred in fixing 50% negligence on the part of the driver of the Car bearing Reg. No. KA.16.M.4675, on the ground that chargesheet is filed against the driver of the Lorry bearing Reg. No. KA.16.A.9789.

In brief, the facts of the case are:

The claimants are the wife and children of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 7.12.2011 the deceased along with one M. Basavaraj and Dr. Sreenivasa B., was traveling in a car bearing Reg. No. KA.16.M.4675 from Chitradurga towards Mangalore. The said car was driven by one Basavaraj. While the car was proceeding on NH.13 between Chitradurga-Holalkere, the driver was driving the same cautiously in a moderate speed on the left side of the road. At about 3.30 a.m. while the car was proceeding near Devapuradahatti village, at that time, the driver of the Goods Lorry bearing Reg. No. KA.16.A.9789 came from opposite direction on the wrong side of the road with high speed in a rash and negligent manner and dashed to the car. As a result, deceased sustained fatal injuries and died on the spot and the other inmates have sustained injuries.

It is the further case of the claimants that, deceased was aged about 64 years, hale and healthy prior to the accident, retired Medical Officer and also doing agriculture and getting Rs. 1,70,000/- per annum as pension and Rs. 1,00,000/- from agriculture and contributing the same for the maintenance of the family. Due to his untimely death, the claimants have suffered financial loss as they have lost their bread earner, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 7,37,200/- (wrongly shown as Rs. 7,37,600/-) under different heads with interest at 6% p.a., from the date of petition till its deposit, fastening liability in the ratio of 50% each on the part of the drivers of both the vehicles and directing the Insurer of both the vehicles to indemnify the award amount.

Being aggrieved by the said judgment and award, the claimants and the Insurer of the car have presented these appeals seeking appropriate reliefs as stated supra.

The submission of the learned counsel appearing for the claimants, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards conventional heads and what is awarded is inadequate and it requires to be enhanced reasonably, in the light of the judgment of the Apex Court and this Court, on the ground that, due to untimely death of the deceased, wife has lost her companion and children are deprived of the love and affection, guidance and security of their father and also suffered mental pain and agony. Further, he submits that, the rate of interest awarded by the Tribunal towards conventional is on the lower side and it is liable to be enhanced atleast to 9 to 10% since the accident is of the year 2011. Further, he submits that, the Tribunal after critical evaluation of the oral and documentary evidence, has recorded the finding of fact for fixing negligence in the ratio of 50% each on the part of the drivers of both the vehicles and therefore, interference by this Court is not called nor the Insurer has made out any good grounds to interfere in the finding of fact recorded by the Tribunal. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel appearing for the Oriental Insurance Company Limited, the Insurer of the car bearing Reg. No. KA.16.M.4675, vehemently submitted that, the Tribunal ought to have fixed the entire negligence on the part of the driver of the Lorry bearing Reg. No. KA.16.A.9789 as there is no negligence on the part of the driver of the car. But, the Tribunal has not looked into or considered this aspect or the contents of IMV report and the complaint. Therefore, he submitted that the negligence fixed in the ratio of 50% each on the drivers of both the vehicles is liable to be modified by fixing entire negligence on the part of the driver of the Lorry bearing reg. No. KA.16.A.9789. Further, he submits that the quantum of compensation awarded by the Tribunal is just and reasonable and therefore, it does not call for interference.

After hearing the learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:

(i) Whether the Tribunal has justified in fixing negligence in the ratio of 50% each on the drivers of both the vehicles?

(ii) Whether the compensation awarded by the Tribunal is just and reasonable?

Re. Point No. 1:

The occurrence of the accident and the resultant death of the deceased are not in dispute. Further, it is not in dispute that two vehicles were involved in the accident, viz., Car bearing Reg. No. KA.16.M.4675 and Goods Lorry bearing Reg. No. KA.16.A.9789 and both the vehicles were insured, policies were produced and they were in force as on the date of the accident. The Tribunal has considered all these documents while answering issue No. 1 and with reference to the contents of Exs.P1 to 6, elaborately discussing the same in para-10 of its judgment has held that, the accident was due to composite negligence on the part of drivers of both the vehicles. Further, the Tribunal considering the damages caused to the vehicles, has observed that, it is a head on collusion and front side full body of the car was involved in the accident and the accident was in he night hours around 3.30 a.m. and the drivers of both vehicles driven their vehicles in high speed with negligent manner without observing traffic rules, due to which, accident took place and inmates of the car sustained injuries. Further, the Tribunal has observed that, the accident was due to composite negligence on the part of drivers of both the vehicles and they have contributed negligence equally and proceeded to fix negligence in the ratio of 50% on the drivers of both the vehicles. The said reasoning given by the Tribunal while answering Issue No. 1 in para-10 of its judgment for fixing negligence in the ratio of 50% each on the part of the drivers of both the vehicles is just and reasonable and we do not find any error or arbitrariness in the same. Therefore, it does not call for interference. Hence, we answer this point accordingly.

Re. Point No. 2:

The claimants are the wife and children of the deceased. It is the case of the claimants that deceased was aged about 64 years, hale and healthy prior to the accident, he was a retired Medical officer and also doing agriculture. On account of his untimely death, claimant No. 1 has lost her companion and children are deprived of the love and affection, guidance, security of their father. It is the case of the claimants that deceased was getting Rs. 1,70,000/- p.a. as pension and also getting income of Rs. 1,00,000/- per annum from agricultural work and was contributing the same for the welfare of the family. The Tribunal, after assigning valid reasons, has justified in assessing the income of the deceased at Rs. 12,444/- per month, held that claimant Nos. 1 and 2 are the dependants and after deducting 1/3rd towards living and personal expenses and adopting multiplier of ''7'' since deceased was aged about 64 years, has awarded a sum of Rs. 6,97,200/- towards loss of dependency. The said compensation awarded by the Tribunal is just and reasonable and therefore, it does not call for interference.

However, the Tribunal has erred in not awarding reasonable compensation towards conventional heads and what is awarded is on the lower side and is liable to be enhanced reasonably. Having regard to the facts and circumstances of the case and following the law laid down by the Apex Court and this Court in hosts of judgment, we deem it fit to award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 1,00,000/- towards loss of love and affection at the rate of Rs. 25,000/- each to the claimant Nos. 1 to 4, Rs. 25,000/- towards loss of estate and transportation and Rs. 25,000/- towards funeral expenses instead of Rs. 40,000/- awarded by the Tribunal.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the entire compensation instead of 6% awarded by the Tribunal.

In all, the claimants are entitled to a total compensation of Rs. 9,47,200/- instead of Rs. 7,37,200/- as awarded by the Tribunal There would be an enhancement of Rs. 2,10,000/- with interest at 9% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the claimants is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merits.

The impugned common judgment and award dated 28/02/2013, passed in MVC No. 36/2012, by the Senior Civil Judge and Motor Accident Claims Tribunal, Chitradurga, is hereby modified, awarding a sum of Rs. 2,10,000/- with interest at 9% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The National Insurance Company Limited, Insurer of the Goods Lorry bearing Reg. No. KA.16.A.9789 and the Oriental Insurance Company Limited, the Insurer of the Car bearing Reg. No. KA.16.M.4675 are directed to deposit the enhanced compensation of Rs. 2,10,000/- with interest at 9% p.a., from the date of petition till the date of realization, in the ratio of 50% each, within a period of three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the Insurer of both the vehicles, out of the enhanced compensation of Rs. 2,10,000/-, a sum of Rs. 1,50,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled or Grameena bank, in the name of the claimant No. 1, wife of the deceased, for a period of 5 years and renewable by another 5 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 60,000/- with proportionate interest shall be released in favour of claimant No. 1 immediately.

Draw the award, accordingly.

The statutory amount deposited by the Oriental Insurance Company Limited, the Insurer of the car shall be transmitted to the jurisdictional Tribunal, immediately.