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K.L. Manjunath, J.—MFA No. 5386/2010 is filed by the Insurance Company challenging the finding of the tribunal on the question of negligence and also the quantum of compensation awarded by the tribunal. MFA No. 3114/2010 is filed by the claimants challenging the finding of the tribunal on the question of contributory negligence and also for enhancement of compensation awarded by the tribunal. Therefore these two matters are heard together.
The facts leading to these appeals are as hereunder:-
The claimants are the widow and the minor daughter of one Thio Bold Mascarine who died in a road traffic accident that occurred on 18-7-2004 near Santhekatte Junction at about 11.30 a.m. According to the claim petition the deceased was riding scooter bearing No. KA 14/J-130, from Brahmavara to Udupi, on National Highway 17. When he was near Santhekatte towards left side of the road from Brahmavara to Udupi two buses were parked for picking up the passengers and when he was proceeding by the side of the parked bus lorry bearing No. KA 28 6705 which was coming from the opposite direction in a rash and negligent manner dashed against the scooter of the deceased crossing the middle portion of the road by taking the lorry to the extreme right side. As a result of which he sustained multiple injuries. He was immediately shifted to Hitech Medicare hospital, where he succumbed to the injuries. The deceased was working in Kuwait in a printing press earning Rs. 3,000/- Kuwait Dinar which is equivalent to Rs. 4,80,000/- in Indian currency. The owner of the vehicle remains ex parte. However, the Insurance Company filed the written statement denying that the accident was due to the rash and negligent driving of the scooter and that there is contributory negligence. It was also held that the claim made by the claimants is excessive.
Based on the above pleadings the following three issues were framed by the Court below:-
"1. Whether the petitioners prove that on account of the negligence driving of the lorry the accident occurred on 18.7.2004 near Santhekatte, at about 11.30 A.M., and as a result Thio Bold Mascarine had succumbed to injuries?
Whether respondent No. 2 proves that the accident occurred on account of contributory negligence?
Whether respondent No. 2 proves that the driver of the lorry was not holding any valid and effective licence as on the date and time of the accident?
Whether the petitioners are entitled for compensation as prayed? If so, what is the extent of compensation and from whom it is recoverable?"
To prove their respective contentions on behalf of the claimants in all 4 witnesses were examined and the claimants relied upon Exs. P-1 to P-38. On behalf of the Insurance Company the officer of the Insurance Company was examined as R.W. 1 and he relied upon Ex. R-1 to R-3.
The tribunal considering the evidence let-in by the parties held that the accident occurred due to the contributory negligence of the driver of the lorry and the deceased and the same was apportioned at the ratio of 75% and 25%. The tribunal considering the income of the deceased assessed the loss of dependency at Rs. 3,00,000/- per annum and applied the multiplier of 9. Again by applying the split multiplier of 5 & 4 awarded a total compensation of Rs. 20,85,000/- after deducting 1/4th towards contributory negligence. Therefore these appeals are filed by the claimants as well as the Insurance Company aggrieved by the Judgment & award of the tribunal.
The contention of both the counsels is that the tribunal committed an error in holding that the accident occurred due to the contributory negligence. It is the case of the claimants that the tribunal has committed an error in holding that the accident occurred due to the contributory negligence. The accident that occurred near Santhekatte on National Highway the width of the road on the spot is measuring 25 feet and the middle portion of the road would be 12 1/2 feet. The sketch produced by the Insurance Company is marked as Ex. R-1. The scooterist was on his left side of the road and the lorry which was coming from the opposite direction crossing the road median has taken to further right to an extent of 2 1/2 feet and dashed against on an oncoming scooter. Therefore he contends that the entire liability has to be saddled on the Insurance Company.
Mr. Venkatesh, the learned counsel appearing for the Insurance Company contends that there was sufficient place available for the scooterist to avoid the accident, since the accident has occurred 10 feet from the left edge of the road from the scooterist side. Therefore, it was possible for the scooterist to avoid the accident and that the contributory negligence has to be assessed equally.
The learned counsel appearing for both the parties submit that computation of compensation before the tribunal is not proper because of the arithmetical error committed by the tribunal in computing the compensation and wrong application of multiplier. When the deceased was aged 49 years the tribunal was required to apply the multiplier of 13 against the same he has applied the split multiplier of 9 and 4. He has committed error in calculating the compensation. The learned counsel for the claimants submits that the compensation awarded under conventional heads is on lower side. He therefore requests to re-assess the compensation payable to the claimants.
Having heard the learned counsel for the parties we have to consider the following two points in these appeals:-
1) Whether the finding of the tribunal on the question of negligence is required to be interfered with?
2) Whether the compensation awarded by the tribunal requires to be enhanced or reduced or confirmed?
With regard to Point No. 1 Ex. R-1 is not disputed by the parties herein. It is produced by the appellant Insurance Company. In the accident the scooterist has succumbed to the injuries on the same day. Therefore, we cannot expect the claimants to lead evidence as to the manner in which the accident has taken place. For the reasons best known to the owner or the driver of the lorry have not contested the case and the driver has not been examined to show what made the driver to take his lorry to the further right of the road median. If there were sufficient cause or there was compelling reasons for the driver of the lorry to cross the middle portion of the road, this Court could have considered the contention of the Insurance Company. In the absence of evidence of the driver of the lorry we have to consider the sketch which speaks for itself. As per Ex. R-1 the lorry has crossed the middle portion of the road and has further traversed to an extent of 2 1/2 feet and it is the case of the claimants that the buses were parked for alighting and picking up of the passengers. If the middle portion of the road is 12 1/2 feet and if the accident has occurred at the distance of 10 feet from the left side of the left edge of the asphalted portion of the road this Court is of the opinion that the entire liability has to be saddled on the Insurance Company because the accident has been caused due to the rash and negligent driving of the lorry. The tribunal without considering the sketch and in the absence of evidence of the driver has erroneously held tat the accident occurred due to the contributory negligence of the driver of the lorry and the scooterist. Accordingly, we answer Point No. 1 against the appellant Insurance Company.
So far as Point No. 2 is concerned even if we accept the finding of the tribunal that the deceased after deducting the income tax payable was getting an income of Rs. 3,00,000/- per annum, even if we apply the multiplier of 13 considering his age the loss of dependency has to be calculated at Rs. 39,00,000/-. In addition to that the claimants are entitled for Rs. 2,00,000/- under conventional heads. Thus in all the claimants are entitled for a total compensation of Rs. 41,00,000/-.
In the result, MFA No. 5386/2010 filed by the Insurance Company is dismissed. The MFA No. 5386/2010 filed by the claimants is allowed in-part. The Judgment & award passed by the Additional Civil Judge(Senior Division & MACT, Udupi, dated 15th February, 2010, in MVC No. 1045/2004 are hereby modified holding that the claimants are entitled for a total compensation of Rs. 41,00,000/-, with interest at 6% per annum from the date of the petition till the date of payment.
Out of the compensation payable to the claimants a sum of Rs. 30,00,000/- with interest accrued is apportioned to the 1st claimant widow of the deceased. Rs. 11,00,000/- with interest accrued thereon is apportioned to the daughter and out of the apportioned compensation 60% of the amount with interest accrued is ordered to be deposited in the name of the each of the claimants for a period of 5 years and each of them are entitled to withdraw the periodical interest.
The amount in-deposit is ordered to be transmitted to the tribunal.