M/S SHRIRAM GENERAL INSURANCE COMPANY LIMITED Vs SMT JAYAMMA

M/s. Shriram General Insurance Company has filed this appeal challenging the legality and correctness of the judgment and award dated 22nd December 2012 made in MVC No.8310/2010 passed by the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as "the Tribunal" for short).

The respondents 1 to 3 herein filed a claim petition contending that on 07-08-2010 at about 10.15 p.m., while the son of the first claimant and brother of claimants 2 and 3 deceased Raju was driving the Maruthi Omni bearing Registration No.KA-01/N-6994 from Bangalore to Dharmasthala, on B.M. bye-pass road, near Rajeev Engineering College, a lorry bearing Registration No.KA-16/A- 3814 was parked on the National Highway without putting any indicators. As a result of the same, the deceased without noticing the parked lorry dashed against rear side of the said lorry. Due to the said impact, the driver of Maruthi Omni and other two inmates died on the spot. In the claim petition it was contended that due to negligent parking of lorry on the National Highway, the accident had occurred; that the deceased was aged about 28 years, working as a driver and earning Rs.7,500/- p.m., the family has lost the bread earner and sought for compensation of Rs.10,00,000/-.

In response to the notice issued by the Tribunal, though the owner of the lorry was served with notice, he remained unrepresented. The second respondent insurance company denied the entire averments made in the claim petition and also contended that due to the rash and negligent driving of the Maruthi Omni, the accident occurred, which dashed against the parked vehicle from the rear side. The compensation claimed is exorbitant and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the Tribunal framed necessary issues.

In order to prove the case of the claimants, mother of the deceased got examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P8. On behalf of the respondents, none of the witnesses were examined nor has any documents been marked.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties, held that though the insurance company has taken a specific contention with regard to contributory negligence they have not stepped into the witness box to prove the same in accordance with law. Further, the Tribunal held that the lorry was parked on the National Highway without any indicators or parking lights, which was obstructing the free movement of the vehicles. The police have registered a case against the driver of the lorry and hence, held that the accident occurred due to the actionable negligence on the part of the driver of the lorry and the claimants are entitled to compensation. Taking the income of the deceased at Rs.5,000/- p.m., and Rs.60,000/- p.a., adding 30% towards future prospects, the Tribunal has assessed the loss of dependency at Rs.78,000/- p.a., since he was a bachelor deducting 50% thereof, applying the multiplier 17 awarded a sum of Rs.6,63,000/- towards loss of dependency and Rs.40,000/- towards conventional heads. In all, the Tribunal has awarded a sum of Rs.7,03,000/- with interest at 6% p.a. With regard to liability is concerned, the entire liability was fastened on respondents No.1 and 2. The insurance company being aggrieved by the quantum of compensation and fastening the liability on the insurance company to compensate the claimant filed this appeal.

Heard Sri.H.N.Keshava Prashanth, learned counsel appearing for the appellant and Sri.M.Babu, learned counsel appearing for the Caveator/respondent No.1. Perused the judgment and award, oral and documentary evidence.

Occurrence of the accident, death of the deceased Raju in the road traffic accident occurred on 07-08-2010 is not in dispute. With regard to quantum of compensation is concerned, taking the income of the deceased as Rs.5,000/- p.m., adding 30% towards future prospects is contrary to law. No document has been produced to show that he was permanently employed by the owner of the vehicle. In the absence of the same, taking the income of the deceased at Rs.6,000/- p.m., since he was bachelor, deducting 50% thereof, the loss of dependency comes about Rs.36,000/- p.a., applying the multiplier 17, the claimants are entitled to compensation of Rs.6,12,000/- as against Rs.6,63,000/- awarded by the Tribunal. Further, the claimants are entitled to compensation of Rs.45,000/- towards conventional heads. In all, the claimants are entitled to compensation of Rs.6,57,000/- as against Rs.7,03,000/- awarded by the Tribunal, with interest at the rate of 6% p.a.

With regard to liability of the insurance company is concerned, in MVC No.6260/2010 arising out of the very same accident, the Tribunal by its judgment and award dated 20-04-2012 has fastened the contributory negligence on the part of the lorry to an extent of 70% and 30% on the driver of the Maruthi Omni car. In the instant case also, the lorry was parked on the National Highway without any indicators. In the National Highway especially during night time, the vehicles will be moving at a speed of 80 to 90 Km/per hour, and if the vehicle is parked on the National Highway without indicators, it is not visible. Hence, I am of the opinion that the driver of lorry had attributed to an extent of 70% to the accident for parking the lorry on the National Highway without indicators and the driver of Maruthi Omni also attributed to an extent of 30%. Hence, insurer of the lorry is liable to compensate the claimants to an extent of 70%. Accordingly, I pass the following ORDER

The appeal is allowed is part. The judgment and award dated 22-12-2012 made in MVC No.8310/2010 passed by the Motor Accident Claims Tribunal, Bangalore is modified. The claimants are entitled to compensation of Rs.6,57,000/- with interest at the rate of 6% p.a., as against Rs.7,03,000/- awarded by the Tribunal. The insurance company is liable to compensate the claimants to an extent of 70%.