Mahadeva Deshi and Others vs Cholamandala M.S. General Insu. Co. Ltd. and Others

P.D. Waingankar, J.—This appeal is directed against the judgment and award dated 28.1.2013 in MVC No. 570/2011 on the file of Prl. Civil Judge (Sr.Dn.) & Addl. Motor Accident Claims Tribunal-IV, Chitradruga.

One Purshotam Deshi died in a motor vehicle accident that occurred on 9.9.2011 while he was proceeding in a car bearing registration No. KA-05/B-002 from Bangalore to Davanagere at about 1.15 a.m. At that time, a lorry bearing registration No. KA-54/2529 came from behind in high speed and dashed to the hind portion of the car. It is stated that he was studying in III Year BDS course at Bapuji Dental College, he was a bright student. His parents filed a claim petition under Section 166 of the MV Act claiming compensation. The claim petition was contested by the insurer of the offending lorry. It came up for consideration before the tribunal before whom, on behalf of the claimant, the 1st claimant was examined as PW-1, One Chandrappa was examined as PW-2, Exs-P1 to P12 were marked. On behalf of the respondents, one G. Suresh was examined as RW-1, Exs-R1 to R6 were marked. The tribunal upon hearing both the learned counsel for the parties and on appreciation of evidence awarded a total compensation of Rs. 8,30,000 with 6% p.a. interest by the impugned judgment and award and directed the respondent owner and insurer of the offending lorry to pay 50% of the compensation awarded by fixing 50% contributory negligence on the part of the deceased.

Aggrieved by the quantum of compensation awarded and 50% contributory negligence fixed on the deceased, this appeal is preferred by the claimants.

We have heard both the learned counsel for the appellants-claimant and the respondent -insurance company. Perused the records.

The learned counsel appearing for the appellants-claimants would submit that the though the accident occurred on account of total negligence on the part of the driver of the lorry, the tribunal without any basis fixed 50% contributory negligence on the part of the deceased and as such the finding of the tribunal to that effect is liable to be set-aside. Further it is submitted that the deceased was a III semester BDS student, but the tribunal has taken the income of the deceased at Rs. 10,000/- and by deducting 50% of the compensation towards his ''living and personal expenses'' determined ''loss of dependency'' at Rs. 7,80,000/- which is on the lower side. The compensation awarded by the tribunal under other heads is also on the lower side and hence the learned counsel sought for enhancement of compensation.

On the other hand, the learned counsel for the insurance company has submitted before us that the tribunal on proper appreciation of evidence has rightly recorded a finding that the deceased also contributed towards the accident to the extent of 50%, further by taking the income of the deceased at Rs. 10,000/- p.m. determined the compensation under all the heads and therefore no interference is called for.

Having heard both the learned counsel and on appreciation of evidence, the points that arise for our consideration are:--

"1. Whether the tribunal is justified in fixing 50% contributory negligence on the part of the deceased?

Whether the compensation awarded by the tribunal is just and reasonable?"

Re-Point No. 1:--

The averments made out in the complaint marked as Ex-P1 and FIR Ex-P2 would go to show that on 9.9.2011, the deceased was proceeding on a car bearing registration KA-05/B-002. He himself was driving the car. While he was so proceeding, a lorry bearing registration No. KA-54/2529 came from behind and dashed against the car. It is further evident that the deceased was driving the car without possessing valid and effective driving license as on the date of the accident and was driving the car without using the seat belt. Further it is seen that after the lorry dashed against the car from behind, the front right side door of the car was suddenly opened, the deceased who was driving the car, fell down and thereby the lorry ran over him. As rightly contended by the learned counsel for the insurance company had he used the seat belt, he would not have fallen from the seat and thereby the incident could have been averted. It is for this reason, the tribunal held that the deceased also contributed to the said accident to the extent of 50%. However, on re-appreciation of evidence and that the lorry dashed against the car from behind and that the deceased who was driving the car fell down from the car after opening the door, we determine the contributory negligence on the part of the deceased at 30% and that of the lorry driver at 70% as against ratio of 50:50 determined by the tribunal.

Re-Point No. 2:

Admittedly, the deceased was a III Semester BDS student having no income of his own. However, the tribunal has assessed the income of the deceased at Rs. 10,000/- p.m. which is just and proper. The insurance company has not preferred any appeal. Since the deceased was a bachelor, the tribunal rightly deducted 50% of the income towards the personal and living expenses of the deceased and by applying ''13'' multiplier having regard to the age of the mother of the deceased determined ''total loss of dependency'' at Rs. 7,80,000/- (Rs. 5000 x 12 x 13). Further, the tribunal has rightly awarded sum of Rs. 20,000/- towards ''loss of love and affection'', Rs. 20,000/- towards ''loss of estate'' and Rs. 10,000/- towards ''transportation of dead body and funeral expenses''. Thus the tribunal has awarded a total compensation of Rs. 8,30,000/-. Since we have fixed negligence of the deceased at 30%, the appellants-claimants are entitled for 70% of the total compensation determined which comes to Rs. 5,81,000/- from the respondents together with 6% interest p.a. from the date of petition till the date of realization.

For the foregoing reasons, the appeal filed by the claimants is allowed-in-part. The judgment and award 28.1.2013 passed in MVC No. 570/2011 on the file of the Prl. Civil Judge (Sr.Dn.) & Addl. Motor Accident Claims Tribunal-IV, Chitradurga stands modified. The appellants-claimants have been awarded a compensation of Rs. 5,81,000/- from the respondents together 6% interest p.a. from the date of petition till the date of realization.

The respondent No. 1 insurance company is directed to deposit the compensation awarded together within interest within a period of three weeks from the date of receipt of copy of this judgment.

In the event of deposit, a sum of Rs. 2.00 lakh each shall be invested in Fixed Deposit in the name of appellants-claimants in any Nationalised Bank/Schedule Bank/Grameena Bank for a period of 10 years renewable for another 10 years with liberty to them to withdraw accrued interest periodically.

The remaining amount with proportionate amount shall be released to both the claimants in equal proportion.

Office to draw award accordingly.