K.G. Prabhavathi and Others vs K. Nirmala and Others

Sabhahit, J.—These two appeals arise out of the judgment and awards, dated 26-12-1979, passed by the Motor Accidents Claims Tribunal, Bangalore City, in M.V.C. Nos. 317 and 363 of 1978 on its file.

Govindaraj, the husband of petitioner I and father of petitioners 2 to 4 in M. V. C. No. 317/1978, was proceeding on his scooter, on 10-4-1978, at about 9 or 9-15 a.m., on K.R. Road, from South towards North, according to the claimants, slowly and by the left side of the road. At that time a motorcycle bearing No. MYK 1845, driven by Prabhakara Reddy, claimant in M. V. C. No. 363/1978, from the opposite direction in a rash and negligent manner came on the wrong side, according to the claimant, hit the scooter on which Govindaraj was going, as a result of which there was an accident. Govindaraj sustained fatal injuries and succumbed to the injuries later. He was a businessman earning more than Rs. 1,500/- per month. He was aged 39 years, on these averments they claimed compensation of Rs. 3,34,500/- from the respondents, namely, the owner, the driver and the insurer of the motor-cycle in question.

On the other hand Prabhakar Reddy, who also sustained fracture of his leg averred in the petition that the accident was the result of negligent driving of the scooter by the Govindaraj the deceased, and he instituted M. V. C. 363/1978 and claimed compensation of Rs. 86,000/- from the respondents, namely, the legal heirs of Govindaraj and the Insurance Company.

Both these claim petitions were heard together and during hearing, on behalf of the claimants in M. V. C. 317/1978, five witnesses were examined and two witnesses were examined on behalf of Prabhakara Reddy the claimant in M. V. C. 363/1978, including himself.

The Tribunal, after appreciating the evidence on record, held that the accident happened in the middle of the road and both the riders of the scooter and motorcycle were equally responsible for causing the accident. In that view, instead of mitigating the damages to that extent in each case, the Tribunal dismissed both the petition3 stating ''that the drivers were, quits since both of them were equally liable, in causing the accident. Aggrieved by the said judgment and awards the legal heirs of Govindaraj i.e., the claimants in M. V. C. No. 317/1978 have, instituted M. F. A. No. 677/1980, whereas Prabhakara Reddy, who was claimant in M. V. C. 363/1978 has come up in M. F. A. No. 101/1981 before this Court.

Sri Sundaraswamy, learned counsel appearing for the appellants in M. F. A. 677/1980, strenuously urged before us that the Tribunal was not justified in coming to the conclusion that the rider of the scooter, namely, Govindaraj contributed 50 per cent in causing the accident. According to him, it was the motor-cyclist who was responsible for causing the accident. Alternatively ht submitted even assuming that the rider of the scooter contributed 50 per cent, the Tribunal was not justified in dismissing the entire claim of the claimants. At best, according to him, the Tribunal could have deducted 50 per cent damages as 50 per cent was contributed to the cause of the accident by the deceased.

As against that the learned counsel, Sri Nagesh, appearing for the appellants in M. F. A. 101/1981 submitted that it was scooter rider who was responsible for causing the accident. Alternatively he submitted that the Tribunal was not justified in dismissing the entire claim of Prabhakara Reddy, even assuming he contributed 50 per cent to the cause of the accident.

Both the counsel argued that compensation ought to have been awarded.

The points, therefore, that arise for on.: consideration in these appeals, which are heard together, are:

(1) Whether the Tribunal was justified in holding that the riders of the scooter and the motor-cycle contributed equally for the cause of the accident?

(2) Whether the Tribunal was justified in dismissing the claim petitions in both the cases 7

(3) If not, what is the amount of compensation to which the claimants in M. V. C. 317/I978 are entitled?

(4) What is the amount of compensation to which Prabhakara Reddy is entitled?

It Is seen that the Tribunal has dismissed A 1. C. No. 363/1978 on the ground of delay in filling the petition. The delay is of 42 days. The ground is that the claimant was undergoing treatment and was in mental anguish. In view of the fact that he suffered fracture his leg and was actually put in plaster cast, the Tribunal ought to have condoned the delay holding the reason advanced by the claimant as sufficient. The Tribunal was not justified, in our considered view, in rejecting the petition on the ground of delay also. Therefore, we set aside the finding of the Tribunal and hold that the claimant has shown sufficient cause for condonation of delay and we condone the delay.

P.Ws & 2 and 3 are examined on behalf of the claimants in M. V. C. 317/1978. They are eye-witnesses according to them to the occurrence. The Tribunal has not believed their version for the reasons that they admitted in the cross-examination that they never reported that they had seen the accident to anybody else before deposing in Court. Further they never informed the accident even to the members of the family of the deceased. P. W. 4 is a shop owner near the shop of the deceased. He knew the deceased. In the normal course, therefore, it was natural to expect ''that he would in. form at least the members of the family of the deceased. Similar is the case with P. W. 3. Moreover, when they did not reveal to anybody else that they saw the accident. it was not known how the members of the family of the deceased came to know that they had seen the accident and requested them to depose before the Tribunal. admittedly no summons were issued to them from the Tribunal. In the circumstances, therefore, the Tribunal was perfectly justified in not placing reliance on the oral evidence of these witnesses.

The Tribunal has also not placed much reliance on the evidence of Prabhakara Reddy for the simple reason that he was interested in absolving himself from the liability. The Tribunal did not rely upon the evidence of R. W. 2 the pillion rider, as obviously he was also interested in the claimant Prabhakara Reddy.

In the circumstances, the Tribunal has rightly placed reliance on the circumstantial evidence brought on record, in appreciating the versions given by the two parties.

P. W. 2 is the Sub-Inspector of Police. He has stated that he visited the spot of accident immediately and noted the place of impact and positions of the vehicles. He has drawn the mahazar as also the sketch, Exhibits P-2 and P-3. They clearly establish that the accident happened exactly in the middle of the road and after such impact the motor-cycle proceeded to some distance, whereas the scooter wav thrown off towards its left side and fell down. In the circumstances, therefore, the Tribunal has rightly come to the conclusion that the accident was the result of rash and negligent driving of both the vehicles by its drivers and the Tribunal has rightly fixed the contribution of negligence at 50 per cent. We have no reason to differ.

14-A. Having held so, the Tribunal went on to say:

"The present accident has taken place duo to the rashness and negligence on the part of both the scooter driver deceased Govindaraj as well as the motor-cycle driver Prabhakara Reddy. Therefore, it is a case of composite negligence. Therefore, petitioners in A V. C. No. 317/1978 as well as the petitioner in M. V. C. 363/1978 are not entitled to get any compensation."

This observation, obviously, is erroneous.

If each driver contributes 50 per cent to the cause of the accident, it is obvious that 50 per cent of the damages awarded should be deducted from the total fixed. It cannot be said that he is not entitled to damages at all, That is what the Tribunal has done.

In fact, this Court, in the case of Mahadev Balappa Babshet v. Ramesh Narayan Nagwekar (1976) 2 Kant LJ 324, speaking through a Division Bench had occasion to consider a similar situation wherein under similar circumstances the Tribunal had dismissed the claim petition. This Court has ruled thus :

"The Tribunal could only mitigate the liability of the drivers to each other to the extent of fifty per cent and not deny altogether the claim of the offending drivers who happened to be the claimants also."

Similar is the view taken by this Court in a Division Bench decision, in the case of Vittobai v. Raghavan (1978) 2 Kant LJ 262, in which it is held:

"As the deceased rider of the Suvega contributed 50 per, cent to the cause of the accident, 50 per cent of the compensation arrived at should be awarded."

Therefore, we set aside the finding of the Tribunal that no compensation should be awarded, in the circumstances and hold that the claimants in each case are entitled to 50 per cent of the damages fixed.

That takes us to the question of quantum of compensation. Govindaraj, the deceased in M. V. C. 317/1978 was a businessman. His Income Tax return for the year 1978-79 is produced at Ext. P-5. That shows that his income was Rs. 15,700/- i.e., the in come to his share in the business. Therefore, it can safely be concluded that he was earning an average Rs. 1,000/- and a little more per month and hence we deem it just and proper to fix the loss of dependency at Rs. 600/- per month to the members of the family, the claimants in M. V. C. 317/1978. Therefore the annual loss of dependency would be Rs. 7,200/-. Using the multiplier ten, we get total loss of dependency at Rs. 72,00/-. To this has to be added Rupees 5,000/- towards loss to the estate of the deceased, Rs. 4,,000/- towards loss of consortium to the widow and Rs. 1,000/- towards incidental and funeral expenses. In all, therefore, the global compensation to which the claimants would have been entitled would be Rs. 82,000/-. In addition the Tribunal has suggested that the damages on account of accident to the scooter at Rupees 1,590/- which we round it off to Rs. 1,600/-. Together, therefore, the claimants would have been entitled to Rs. 83,600/-. But in -view of the fact that the rider of the scooter contributed 50 per cent to the accident, the claimants are entitled to only 50 per cent of the damages, which amounts to Rupees 41,800/- along with interest and costs.

The claimant in M. V. C. 363/1978 is Prabhakara Reddy. The evidence on record shows that he suffered fracture of the leg. The Tribunal has suggested for pain and suffering and disability Rs. 10,000/- as general damages. We accept it. The Tribunal has proposed Rs. 1,000/- towards nourishing food which also we accept. Together therefore, he would have been entitled to compensation of Rs. 11,000/-. But in view of the fact that the claimant contributed 50 Per cent to the cause of the accident, he would be now entitled to Rupees 5,5001- along with interest of costs.

The Tribunal has further held that the Insurance Company is not liable to pay the compensation in M. V. C. 317/1978 because the insured person of the vehicle, Venkatarama Reddy, the owner of the motor cycle, was no more and according to the Tribunal the policy lapsed on the death of the insured. This view of the Tribunal came to be challenged before us. In fact this Court by a Division Bench decision in the case of Smt. Rangamma v. Thimmarayappa ILR (1980) Kant 804, had an occasion to consider similar situation and after reviewing the case law, this Court has held:

"The interest secured under a policy for the user of a motor vehicle in a public place can be deemed to be property and it passes to the legal representatives on the demise of the insured for the rest of the period insured."

Therefore, even if the insured dies, the policy survives for the benefit of legal heirs till the period of policy is over. That being so, the Tribunal was not justified in coming to the conclusion that the policy lapsed after the death of the insured. We hold that the insurer of the motor-cycle would be liable to pay the compensation under S. 110-B of the Motor Vehicles Act.

In the result, M. F. A. 677/1080 is partly allowed. The judgment and award of the Tribunal are set aside. The claimants are awarded Rs. 41,800/- along with interest at 6 per cent per annum, from the date of petition till payment, as also costs of the claimants throughout.

The insurer arrayed as respondent-3 (K.G.I.D.) shall pay the same along with interest and costs, as stated above, to the claimants.

The claimants 2 to 4 are minors. Claimant-5 is mother, aged 60 years and claimant No. 1 is the widow. Claimant No. 5 who was aged 60 years, at the time of the accident, is awarded Rs. 5,000/- along with interest as indicated above. Claimants 2 to 4 are each awarded Rs. 6,000/-. The insurance department shall deposit Rs. 18,000/along with interest as indicated above, before the Tribunal and the Tribunal in turn shall deposit the same in a scheduled bank in the name of the three minors tiff such time as each of them attains the age of majority with their mother, claimant No. 1. as guardian. Claimant-1 is at liberty to withdraw the interest accruing on the deposits from time to time, and spend the same for, the welfare of the minors. The rest of the amount with interest as also the costs shall be paid by the k. G. 1. D. to the first claimant, the widow of the deceased as indicated above.

M. F. A. No. 101/1981 is partly allowed. The judgment and award of the Tribunal are set aside. The claimant is awarded R9. 5,500/- along with interest at 6 per cent from the date of petition till payment as, also his costs throughout. Respondent-6 the New India Assurance Company shall pay the same along with interest and costs, as indicated above to the claimant.

Order accordingly.