Kavitha and Others vs New India Assurance Co. Ltd. and Others

P.S. Dinesh Kumar, J—These two appeals have been preferred challenging the Judgment and Award dated 14.3.2012 in MVC No. 7742/2010 on the file of the MACT., (SCCH-11), Bengaluru (Tribunal'' for short) by both the claimants as well as the Insurer.

MFA No. 5215/2012 is filed by the Claimants and MFA No. 10093/2012 by the Insurer.

For the sake of convenience, parties shall be referred as per their status in the claim petition.

Brief facts of the case are, the husband of the first claimant was driving a Car bearing No. KA-43-M-1467 on Devanahalli - Sulibele Road at about 10 p.m. on 18.7.2010. A lorry bearing No. KA-14-7199 was suddenly stopped in the middle of the road without any signal which resulted in the Car ramming into the hind portion of the lorry. Due to the impact, husband of the first claimant sustained fatal injuries and died.

The claimants filed the instant claim petition for a compensation of Rs. 30 lakhs. Insurer contested the claim by denying the petition averments but admitted issuance of policy. Insurer also took a stand that the accident had taken place due to the negligence of both drivers and therefore both vehicles involved must be held guilty of composite negligence.

On consideration of the material on record, the Tribunal awarded a sum of Rs. 35,10,000/- payable with 6% interest and held the Insurer of lorry liable to satisfy the award. Hence, these appeals.

We have heard Sri K.V. Shyamaprasada, learned Counsel for the claimants and Sri A.N. Krishna Swamy, learned Counsel for the Insurer and perused the records.

Learned Counsel for the claimants submits that the deceased was a promising business man. He was the proprietor of a firm namely, Mookambika Earth Movers & Developers and an income tax assessee. He was owning three earth moving equipments of JCB make and owned agricultural land also. He submits that the Tribunal has erred in not awarding adequate compensation and deducting 1/3rd out of the income as against 1/4th as held by the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . Accordingly, he prays for allowing claimants'' appeal and to dismiss the appeal filed by the insurer.

Per contra, learned Counsel for the insurer vehemently contends that the driver of the Insured lorry was guilty of violating Section 122 of the Motor Vehicles Act, 1988 by parking the lorry on the National Highway in a perilous manner. This being a serious violation of law, the Insurer cannot be held liable to satisfy the award.

He further submits that the sketch of the accident site-Ex. P3 prepared by the police demonstrates that there was sufficient space of nearly 12 feet for the car to over take the lorry. The report prepared by the Motor Vehicle Inspector-Ex. P5 reveals that the front portion of the car has been severely damaged which indicates that the car was driven in a rash and negligent manner.

In sum and substance, he contends that the Insurer cannot be held liable to satisfy the award as there is perceptible breach of statutory provisions by the driver of the lorry. As a second line of defence, he perseveres heavily on the contributory negligence on the part of the driver of the car for apportionment of liability.

We have bestowed our anxious consideration to the submissions of the learned Counsel for the claimants and the Insurer and examined the material papers including the trial Court records.

Facts are not in dispute. Coverage of Insurance is also not in dispute. Then what remains for consideration is the quantum of compensation and the liability. The Tribunal framed three issues which included an issue as to whether the lorry was parked in a negligent and hazardous manner. While answering this issue, the Tribunal has recorded a finding that the defence pleaded on behalf of the Insurer that the lorry was parked with parking lights and indicators was not credible enough because RW. 1 examined on behalf of the Insurer was not an eyewitness. The Tribunal has also adverted to the categorical admission of RW.3, lorry driver which suggests that at the time of accident, his vehicle was parked on the National Highway and the engine was in switch-off mode. In the premise, the following points arise for our consideration:--

"(i) Whether there was any contributory negligence on the part of the driver of the Car?

(ii) What is the quantum of compensation the claimants shall be entitled to?"

Re-point No. (i):

Admittedly, the accident has taken place on the National Highway. Ex. R2 discloses that the lorry was parked in the centre of the National Highway. The left side of the car has rammed into the extreme right hind portion of the lorry. Driver of the lorry has stated in his examination-in-chief that he had parked the lorry at 8 p.m. and the accident took place at 9.30 p.m. He has categorically admitted in the cross examination that at the time of accident, the lorry was parked on the National Highway and the engine was in switch-off mode. He has not stated anything with regard to any type of indicator which would have warned the driver of the car.

In the light of the above material evidence, we hold that the driver of the lorry was responsible for the accident and there was no contributory negligence on the part of the driver of the Car.

Re-point No. (ii):

During the course of the hearing, learned Counsel for the claimants submitted that the income of the deceased taken as Rs. 3,25,000/- per annum is in parity with the income tax returns. This was not disputed by the learned Counsel for the Insurer. Thus, the remaining grievance is only with regard to the compensation under the conventional heads.

The deceased was aged 30 years at the time of accident and there were in all 4 claimants. Therefore, in our considered view, the computation of loss of dependency by deducting 1/3rd of the earning is just and appropriate. So far as the compensation towards other conventional heads are concerned, we have noted that the Tribunal has accepted the income reflecting in income tax returns of only one particular year namely, 2009-2010 and not average income while computing the loss of dependency. There was consensus between the learned Counsel with regard to the earning capacity of the deceased. In our view, the quantum under the head loss of dependency'' is generous enough to cover the compensation under the conventional heads also. Hence, we have refrained to interfere with the quantum assessed by the Tribunal under the conventional heads.

In the circumstances, for the aforementioned reasons, appeals filed by both claimants as well as the Insurer do not merit any interference and accordingly stand dismissed.

Registry is directed to transmit the amount in deposit and Lower Court Records to the jurisdictional Tribunal, forthwith.

Ordered accordingly.

No costs.