National Insurance Co. Ltd. and Others vs Indramma and Others

N.K. Patil, J.—These two appeals respectively by the Insurer and by the claimants are directed against the same impugned judgment and award dated 01/07/2013, passed in MVC No. 172/2012, by the VI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-2), (hereinafter referred to as ''Tribunal'' for short).

The Tribunal, by its judgment and award, has awarded a sum of Rs. 12,27,000/- under different heads with interest at 6% per annum from the date of petition till realization, as against the claim Rs. 30,00,000/- on account of the death of the deceased Sri. Panchakshari, in the road traffic accident.

It is the case of the Insurer that, the quantum of compensation awarded by the Tribunal is on the higher side and is liable to be reduced and that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the scooter and therefore, it is liable to be fixed reasonably. Whereas, it is the case of the claimants that the quantum of compensation and the rate of interest awarded by the Tribunal is on the lower side and is liable to be enhanced reasonably.

In brief, the facts of the case are:

The claimants are the wife, daughter and mother of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the owner and insurer of the offending vehicle, on account of the death of the deceased in the road traffic accident, contending that, on 25.6.2011 at about 3.15 p.m. deceased was riding the Scooter bearing Reg. No. KA.04.H.1214 cautiously on the left side of Arasikere-Tiptur (NH.206) road and when he came near Kaveri Agricare Factory towards Arasikere, at that time, suddenly the driver of the car bearing Reg. No. KA.14.N.712 came from opposite direction in a rash and negligent manner to his extreme right i.e. wrong side and dashed against the scooter of the deceased and caused the accident. Due to which, deceased fell down and sustained grievous injuries all over the body and succumbed to the same on the spot.

It is the further case of the claimants that, deceased was aged about 35 years, hale and healthy prior to the accident, working as Security Guard at N.S. Mansion, 12th cross, Bangalore and earning Rs. 18,000/- per month and also doing agriculture as he possessed 4 acres of land and looking after the welfare of the family by contributing his entire earnings to the family as he was the only earning member in the family. Due to his untimely death, wife has lost her companion, minor daughter is deprived of the love and affection, guidance and security of her father and mother has lost her son and they also suffered financial loss as they have lost their bread earner, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 12,27,000/- under different heads with interest at 6% p.a., from the date of petition till realization.

Being aggrieved by the said judgment and award passed by the Tribunal, the Insurer and the claimants have filed these appeals seeking appropriate reliefs as stated supra.

We have heard the learned counsel appearing for the Insurer and learned counsel appearing for claimants.

The submission of learned counsel Sri. B.C. Seetharama Rao, appearing for the Insurer, at the outset is that, the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the scooter and therefore, it is liable to be fixed reasonably. To substantiate the said submission, he has taken us through the stand taken by the Insurer in the statement of objection and submitted that, the driver of the car has not been examined and the Tribunal has erred in not considering Ex. P3-spot mahazar and Ex. P5-IMV report which clearly show that, it is the deceased who had acted negligently in riding his scooter beyond the middle of the National highway measuring 20 ft x 8 ft mud road on either side and therefore, the finding of the Tribunal regarding negligence is perverse and requires to be reversed fixing entire negligence on the part of the deceased, rider of the scooter. Further, he submitted that, the Tribunal has erred in assessing the income of the deceased at Rs. 6,000/- per month and adding another 50% towards future prospects to the same which is on the higher side and disproportionate to his income, as it is the case of the PW1 that deceased was working as Security Guard at N.S. Mansion and earning Rs. 18,000/- per month, but they have not produced any documents or examined the employer to prove the same and therefore, the income deceased assessed by the Tribunal is liable to be reduced. Therefore, he submitted that the impugned judgment and award is liable to be modified by fixing reasonable negligence on the part of the deceased, rider of the scooter and by reducing the compensation.

Per contra, learned counsel appearing for claimants, inter alia contended and substantiated that the Tribunal has justified in recording the finding of fact for fixing entire negligence on the part of the driver of the car bearing Reg. No. KA.14.N.712 which was insured with the insurer that due to rash and negligent driving by the driver of the car, the accident has occurred, deceased sustained injuries in the said accident and succumbed to the same. Further, he submits that it is crystal clear from the documentary evidence that, Police Authorities have filed the charge-sheet against the driver of the car. Therefore, he submitted that interference by this Court is uncalled for.

Further, he submits that, the Tribunal has erred in assessing the income of the deceased at Rs. 9,000/- per month after adding 50% to Rs. 6,000/- per month which is on the lower side and is liable to be enhanced reasonably on the ground that, deceased was drawing the salary of Rs. 18,000/- per month as he was working as Security Guard in N.S. Mansion, Bangalore and also doing agriculture as he was owning agricultural lands. Therefore, he submitted that the income of the deceased may be reassessed reasonably between Rs. 10,000/- to Rs. 11,000/- per month, after deducting 1/3rd towards personal and living expenses of the deceased and applying multiplier of ''16'' as deceased was aged about 35 years, reasonably compensation may be awarded towards loss of dependency. Further, he submits that, the compensation awarded by the Tribunal towards conventional heads is on the lower side and is liable to be enhanced reasonably in the light of the judgment of the Apex Court and this Court. Further, he submits that the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side and is liable to be enhanced atleast to 9 to 10% as the accident is of the year 2011 in the light of the judgments of the Apex Court and this Court. Therefore, he submitted that the impugned judgment and award is liable to be modified.

After hearing the learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

(i) Whether the entire liability fastened by the Tribunal on the driver of the Car bearing Reg. No. KA.14.N.712 without fixing any negligence on the part of the deceased, rider of the scooter is sustainable in law?

(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

Re.Point No. 1:

The occurrence of the accident and the resultant death of the deceased are not in dispute. Two vehicles were involved in the accident viz., Scooter bearing Reg. No. KA.04.H.1214 and Car bearing Reg. No. KA.14.N.712. The offending vehicle in question was insured with the insurer and the policy was in force as on the date of the accident.

The Tribunal, after appreciating the oral evidence of PW1 and documentary evidence produced at Ex. P1-FIR, Ex. P2-Complaint, Ex. P3-Mahazar, Ex. P4-Charge sheet and Ex. P5-IMV report has held that, the accident has occurred on account of the rash and negligent driving by the driver of the car bearing Reg. No. KA.14.N.712 and in the said accident deceased sustained injuries and succumbed to the same.

It is significant to note that, it is the case of the claimants that, the driver of car bearing Reg. No. KA.14.N.712 came from opposite direction in a rash and negligent manner endangering to human life came to his extreme right i.e. wrong side and dashed against the scooter and caused the accident. Even though, Insurer has filed objections, he has not entered into witness box to substantiate its stand taken in the objection that, on account of the negligent driving of the scooter by the deceased the said accident has occurred and that, car did not possess FC and the driver of the car did not possess valid DL at the time of accident. It is the contention of the learned counsel appearing for Insurer that, the contents of Ex. P3-Spot Mahazar and Ex. P5-IMV report show that there is negligence on the part of the deceased, rider of the scooter who has negligent in riding his scooter beyond the middle of the National Highway and inspite of taking all precautionary measure, the driver of the car could not avoid the accident and therefore, the Tribunal ought to have fixed reasonable negligence on the part of the deceased, rider of the scooter. The said contention cannot be accepted and is liable to be rejected for the reason that, the Police Authorities, after due investigation in the matter have filed a charge-sheet against the driver of the Car which is a conclusive proof and as it is not challenged by the Insurer and that the damages caused to the vehicles as per the IMV report issued by the competent authority establishes beyond all reasonable doubt that the entire negligence is on the part of the driver of the car. Taking all these aspects into consideration and after re-appreciation of the oral and documentary evidence available on file, we are of the considered view that the Tribunal has justified in fixing entire negligence on the part of the driver of the car and the same is just and reasonable and in strict compliance with the material available on record and therefore, it does not call for interference, nor we find any good grounds as such made out by the Insurer to entertain the grounds urged by it in this regard.

Re.Point No. 2:

Regarding quantum of compensation is concerned, it is the case of the claimants that deceased was aged about 35 years, hale and healthy prior to the accident, and on account of his death, claimants who are the wife, daughter and mother have suffered mental shock and agony apart from social and financial distress in the family as they have lost their earning member. It is the further case of the claimants that deceased was working as Security Guard at N.S. Mansion, 12th Cross, Bangalore and earning Rs. 18,000/- per month and also doing agriculture work as he was owning 4 acres of land. But to prove that, claimants have not produced any documentary evidence to show that deceased was earning Rs. 18,000/- per month. The Tribunal, after assigning cogent and valid reasons has justified in assessing the income of the deceased at Rs. 6,000/- per month and therefore, it does not call for interference, nor we find any justification or good grounds as such made out by the claimants to reassess the income of the deceased. Further, the Tribunal has justified in awarding a sum of Rs. 11,52,000/- towards loss of dependency by assessing the income of the deceased at Rs. 6,000/- per month, adding 50% of the same towards future prospects, deducting 1/3rd towards personal and living expenses of the deceased and applying the Multiplier of ''16'' since deceased was aged about 35 years and therefore, it does not call for interference.

Further, as rightly pointed out by the learned counsel appearing for the claimants, the compensation awarded by the Tribunal towards loss of consortium, towards loss of love and affection, towards loss of estate and towards transportation of dead body and funeral expenses is on the lower side and is liable to be enhanced reasonably. Having regard to the facts and circumstances of the case and in the light of the law laid down by the Apex Court and this court, we award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each of the claimant Nos. 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation of dead body and funeral expenses.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

In all, the claimants are entitled to a total compensation of Rs. 13,77,000/- as against Rs. 12,27,000/- awarded by the Tribunal. There would be an enhancement of Rs. 1,50,000/- with interest at 9% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the Insurer is dismissed as devoid of merits and the appeal filed by the claimants is allowed in part.

The impugned judgment and award dated 01/07/2013, passed in MVC No. 172/2012, by the VI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-2), is hereby modified, awarding a sum of Rs. 1,50,000/- with interest at 9% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The Insurer is directed to deposit the enhanced compensation of Rs. 1,50,000/- with interest at 9% p.a., from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the Insurer, the enhanced compensation of Rs. 1,50,000/- with interest shall be released in favour of appellant No. 1 and 3 in equal proportion.

The amount deposited by the Insurer shall be transmitted to the jurisdictional Tribunal immediately.

Draw the award accordingly.