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Judgment
K.L. Manjunath, J.—Though these matters are listed for admission with the consent of the learned counsel appearing for the parties, the appeals are taken up for final disposal.
These sets of appeals are filed aggrieved by the judgment and award passed by the MACT, Mysore, in MVC Nos. 173, 187-193/2009 and 217/2009, dated 13.10.2004.
The facts leading to these appeals are as hereunder:
Nine claim petitions came to be filed by the legal representatives of the deceased and also by the injured claimants claiming compensation in respect of accident occurred on 21.05.2008, at about 9.15 p.m., near Kuppali Village on Belur-Hassan road due to rash and negligent driving of the driver of the Tata Qualis bearing registration No. KA-35-A-3000, in dashing against a stationed tractor-trailer bearing registration No. KA-13 T-4741, other side of the road. As a result of the accident four persons died and five sustained grievous injuries. Therefore, the claim petitions were lodged.
The claimant in MVC No. 173/2009 and MVC No. 217/2009 is the minor daughter of Late. Basavaraj Korparde and Late. Rajalakshmi B. Koparde, aged about 16 years as on the date of the accident. Her father Basavaraj Korparde and the mother Rajalakshmi B. Koparde died in the accident.
4.1 The claimant in MVC No. 187/2009 was also an inmate in the car who sustained injuries in the accident. Therefore, he lodged a claim petition for the injuries sustained by him in the accident
4.2 The claimant in MVC No. 188/2009, one Savitha Y. Koparde, filed a claim petition claiming compensation on account of the injuries sustained by her in the accident.
4.3 The claimant in MVC No. 189/2009 is the daughter of Late. Basavaraj Korparde and Late. Rajalakshmi B. Koparde. She filed the claim petition claiming compensation on account of the injuries sustained by her in the accident.
4.4 The claimant in MVC No. 190/2009, has filed the claim petition claiming compensation on account of the death of one Susheelamma.
4.5 The claimant in MVC No. 191/2009 is a widow of one Yashawanth Koparde has filed the claim petition claiming compensation on account of death of her husband.
4.6 The claimant in MVC No. 192/2009 is one Ganapathy Atadkar, he filed me claim petition seeking compensation on account of injuries sustained by him the accident.
4.7 The claimant in MVC No. 193/2009 is one Saroja G. Atadkar. She filed the claim petition claiming compensation on account of injuries sustained by her in the accident.
The Tribunal on considering the evidence let-in by the parties came to the conclusion that the accident occurred due to contributory negligence of the driver of the tractor-trailer who had parked the vehicle without giving any indicator of stationing the vehicle, in the mid of the road and that the driver of the tata quails vehicle was also rash and negligent. Therefore, the Tribunal held that the accident was on account of contributory negligence of both the drivers. The liability has been saddled on the registered owner of the tractor-trailer and also the owner and insurer of the tata qualis vehicle equally.
Contending that the tractor driver was not responsible for the cause of the accident and that the tractor-trailer was sold by the registered owner in favour of one Shri Dharmegowda long back and that the claim petition''s lodged against the registered owner was not maintainable, the owner of the tractor-trailer by name B.H. Malali Gowda has filed nine appeals. Similarly, the Oriental Insurance Company has filed nine appeals contending that the liability saddled on it, is erroneous and that the accident occurred due to the sole negligence of the driver of the tractor-trailer, in parking the vehicle in the middle of the road without giving any indication. Therefore, separate nine appeals are filed by the Oriental Insurance Company Limited.
Out of nine claim petitions, claimants in four claim petitions namely, MVC No. 173/2009, 192/2009, 193-2009 and MVC No. 219/2009 have filed separate appeals seeking endangerment of compensation. Since all 22 appeals arise out of a common judgment and award passed by the MACT, Mysore dated 13.10.2010, these appeals are heard together.
The contention of the registered owner of the tractor-trailer bearing registration No. KA-13-T-4741 are on two grounds. According to the learned counsel for the owner of the tractor-trailer, the driver of the tractor-trailer was in no way responsible for the accident. According to him, the driver had parked the tractor-trailer four feet from the edge of his left side proceeding from South to North (Hassan to Belur road). The car was coming from Belur to Hassan. At the spot of the accident the width of the road is 44 feet, out of which the asphalted portion is 24 feet and a mud road of 10 feet on the either side of the road. According to him as per Exhibit-P4 the driver of tata qualis car by crossing the middle portion of 12 feet has taken his vehicle further right to an extent of 4 feet. Therefore, he contends that the accident has taken place 16 feet away from west towards east. In other words, he contends that the driver of the car has crossed the asphalted portion of the road 12 feet and took his car further right side to four feet and dashed against the parked tractor-trailer. He further contends that the finding of the Tribunal on the question of negligence has to be set-aside.
He submits that the finding of the Tribunal that the driver of the tractor-trailer had not put any indicator to show that the tractor-trailer was stationed is erroneous. Because the trailer of the tractor will not have any indicator except reflectors, on the rear side of the tractor and if any light rays are focused on the reflector, it would be an indicator for the vehicles coming in the same direction that such a vehicle has been stationed or parked. Even otherwise, he contends that there is nothing to show that what made the driver of the qualis car to cross the road median and take his vehicle to a further right side to an extent of four feet. He further contends that the injured claimants who are all inmates of the car have deposed that the accident occurred due to rash and negligent driving of the tata qualis car only. He further contends that the finding of the Tribunal that the accident occurred due to contributory negligence of the vehicles has to be set-aside.
Per contra, Sri K.N. Sreenivasa, learned counsel appearing for the Oriental Insurance Company Limited, contends that the Tribunal has committed an error in fixing the liability on the company. According to him due to parking of the tractor-trailer on the middle of the road without giving an indicator was sufficient to hold that the accident occurred due to negligence of the driver of the tractor-trailer. Therefore, the entire liability has to be saddled on the owner of the tractor-trailer and in support of his arguments he has relied upon the evidence of the driver of the tractor-trailer and so also the finding of the Tribunal.
The learned counsel for the claimant also submits that the accident is due the rash and negligent driving of the tata qualis. According to him, the Tribunal has not considered the oral evidence let-in by the injured claimants, who are eye-witnesses and have seen the accident. Due to non-consideration of the evidence of the injured claimants, the finding of the Tribunal has to be set-aside. He further contends that the claimants are entitled for enhancement in each of the case, since the Tribunal has failed to consider the compensation properly and the compensation awarded in four appeals are inadequate and liable to be enhanced.
Having heard the learned counsel for the parties, we have to consider the following points in this appeals:
i. Whether the finding of the Tribunal on the question of contributory negligence is liable to be set-aside or interfered with?
ii. Whether the claimants in all these four appeals are entitled for enhanced compensation or not?
iii. On whom the liability has to be saddled?
Since point Nos. 1 and 3 are inter-linked with each other, we would like to deal with these questions together as hereunder:
Exhibit-P4 is the sketch prepared by the police after the accident. The learned counsel appearing for the parties are not disputing the correctness of the sketch. On perusal of the sketch, it is seen that the tata qualis car was proceeding from Belur to Hassan from north to south. At the spot of the accident, the width of the road is about 44 feet out of which, 24 feet is asphalted portion, 10 feet on each side of the road is mud portion. If we consider the middle point of the road on the spot of the accident, it would be 12 feet, on the asphalted portion and it would be 22 feet from the left edge of the mud road, the place of impact is towards east of the road near Kuppali Village. If the car was proceeding from Belur towards Hassan, the driver of the car was required to keep his vehicle towards West and not towards the East. When the spot of the accident is beyond the middle portion, it is for the driver to explain what prompted him to cross the middle portion of the road and cause the accident four feet towards the East or crossing the middle of the road in dashing the parked tractor-trailer.
On perusal of the sketch, the place of impact would be 16 feet from the left side of the asphalted from north to south, but the Tribunal has not considered the sketch properly. We have seen the finding of the Tribunal on the question of the negligence, which is at para-41. On perusal of para-41 of the judgment, we are of the view that the Tribunal without understanding of sketch properly has proceeded on wrong basis. According to the Tribunal, if the tata qualis was proceeding from North to South, its left side would come to the East. Therefore, the Tribunal without understanding the sketch properly, has proceeded under a wrong notion. As a result of which, a finding has been given by the Tribunal as if the driver of the tractor-trailer was responsible in parking his vehicle on a wrong side. Therefore, only on this ground alone, the finding of the Tribunal has to be set-aside.
The Tribunal has also stated in para-41 as hereunder:
"41. As stated supra, the TATA Qualis was proceeding from Belur towards Hassan i.e., from north towards south and its left would be east whereas the tractor was parked on the eastern side of the road itself, on the tar road itself i.e., at the distance of 2 1/2 ft. from the middle imaginary line i.e., on the eastern side. No doubt, it is mentioned in Ex. P. 2 mahazar and Ex. P. 4 Spot sketch that there is a mud road of 10 ft. on either side of the road. The accident occurred at about 9.30 p.m. during night hours. The PSI, Hassan Rural Police Station has clearly stated in Ex. P. 1 complaint that the said tractor was parked without any indicator, light or reflector on the middle of the road and eucalyptus logs were loaded in the tractor and the said logs were protruding for 5 ft. ''without any signal or light or reflector. Perusal of Ex. P. 2 mahazar clearly reveals that the right side wheel of the TATA Qualis was standing on middle imaginary line and left wheel was on the road and tractor was parked at the distance of 6 ft. towards south from the TATA Qualis. It is also revealed in the mahazar that the left wheel of the tractor was standing on the edge of the road facing towards western side and left wheel of the trailer was standing at the distance of 4 ft. from the eastern edge. All these facts clearly reveal that the tractor was parked on the eastern side of the road itself with eucalyptus logs protruding about 5 ft. without signal lights or reflectors. It is pertinent to note that the charge-sheet was submitted against the driver of the Tractor and Trailer. The perusal of mahazar clearly reveals that the entire front portion upto both front doors of TATA Qualis was completely damaged and the seats of the TATA Qualis were removed from their places. It is also clearly reveals that the driver of the TATA Qualis was in high speed and he was rash and negligent. Admittedly, there was 10 ft. mud road on either side of the road. It is not the case of petitioners or driver of the TATA Qualis that any of the vehicles were coming from opposite direction. Under such circumstances, if the driver of the TATA Qualis was diligent, he could have avoided the accident. Considering all these aspects, the Tribunal is of the view that the driver of the TATA Qualis was negligent to the extent of 50% and driver of the Tractor and Trailer was negligent to the extent of 50%. Hence, Issue No. 2 and 3 Addl. Issue No. 2 in MVC. No. 173/2009 are held accordingly, and Issue No. 1 in MVC 187 to 193 and 217 of 2009 are held in the Positive, Issue No. 2 and 3 in MVC 187 to 193 and 217 of 2009 are held accordingly."
A perusal of the same clearly reveals that the entire front portion of the quails was completely damaged and the seat of the Tata Qualis was removed from the place. It also clearly reveals that the driver of the Tata Quails was driving in a high speed and in a rash and negligent. Admittedly, there was 10 feet mud road on the either side of the road. It is not the case of the driver of the tata qualis that any vehicle was coming from the opposite direction. Under these circumstances, if the driver of the tata qualis was diligent, he could have avoided the accident. Having held so, without any basis the Tribunal has wrongly held that the tractor-trailer was parked in a wrong side without giving a indicator or reflector. On perusal of the sketch at the first instance, the tata qualis had hit the trailer portion of the tractor. When the tractor is parked actually there will be a reflector attached to the rear side of the tractor, but the Tribunal has not considered this fact.
The complaint is lodged by the Police Inspector who was on duty and he had come to the spot after the accident. But the complaint of the Sub-Inspector, has not been considered. Because in a trailer attached to a tractor there would not be any indicator to switch on the lights, but what would be available is only a reflector and it is not the case of the insurance company that such a reflector was not there on the trailer of the tractor. Therefore, the finding of the Tribunal on the question of negligence has to be set-aside. Accordingly, we hold that the entire accident occurred due to rash and negligent driving of the driver of the tata qualis. Having held so, we are of the view that the liability saddled on the owner of the tractor-trailer has to be set-aside and the entire liability has to be satisfied by the Oriental Insurance Company.
So far as the compensation claimed in each of the appeals are considered, we have considered them separately as hereunder:
The claimant in MVC No. 173/2009 is the appellant in MFA No. 1140/2011. The claimant is none other than the daughter of Doctor. Basavaraj Koparde. The Tribunal has considered - the evidence let-in by the parties in para-45. The Tribunal based on the Income Tax returns has rightly considered the income of the deceased at Rs. 1,40,000/- per annum. Having held so, the Tribunal has deducted 1/3rd of the income towards personal income of the deceased. Considering the loss of dependency at 2/3rd of Rs. 1,40,000/- per annum. According to us, the Tribunal has committed an error in deducting 2/3rd instead of 50%, because the mother of the claimant one Rajalakshmi also died in the same accident. The claimant Nisha Koparde is the only legal heir. Therefore, 50% of the income was required to be deducted. Therefore, we are of the view that the compensation awarded under the head of loss of dependency is on higher side. Having held so, we have also considered the compensation awarded under the conventional heads. The Tribunal has awarded only Rs. 15,000/- towards conventional heads, which is on lower side. If we recalculate the actual compensation awardable under the conventional heads the excess amount paid under the loss of dependency will making good the loss. Therefore, we do not see any reason to interfere with the findings of the Tribunal. Accordingly, MFA No. 1140/2011 is dismissed, by confirming the quantum of compensation awarded by the Tribunal.
The claimant in MVC No. 192/2009 is the appellant in MFA No. 1186/2011. It is the case of injury and the Tribunal has in all awarded a sum of Rs. 4,30,600/-. The claimant therein is a retired employee of Mysore Kirloskar at Hubli. The Tribunal has awarded compensation towards ''future loss of earning''. Considering the quantum of compensation under each heads, we do not see any reasons to interfere with the same. Accordingly, the appeal is dismissed.
The claimant in MVC No. 193/2009 is the appellant in MFA No. 1185/2011. In all, the Tribunal has awarded a sum of Rs. 2,41,950/-. We have examined the evidence let-in by the claimants and considering the amount awarded by the Tribunal, we do not see any reason to interfere with as the same is just and proper compensation. Accordingly, we dismiss the appeal.
The claimant in MVC No. 217/2009 is the appellant in MFA No. 1141/2011. The claim petition is lodged claiming compensation on account of the death of one Rajalakshmi B. Koparde, mother of the claimant. In this case also the Tribunal has committed an error in deducting 1/3rd income towards personal expenses, as against 50%. The Tribunal has awarded only Rs. 15,000/- towards conventional heads, which is on lower side. If we recalculate the actual compensation awardable under the conventional heads the excess amount paid under the loss of dependency will making good the loss. Therefore, we do not see any reason to interfere with the findings of the Tribunal. Accordingly, MFA No. 1141/2011 is dismissed, by confirming the quantum of compensation awarded by the Tribunal.
In the result in MFA No. 1140/2011, 1141/2011, 1185/2011 and 1186/2011 are dismissed. MFA Nos. 11584/2011, 11589/2011, 11590/2011, 11591/2011, 11592/2011, 11593/2011, 11594/2011, 11595/2011 and 11596/2011 are allowed. The liability saddled on the appellant herein is set-aside holding that the Oriental Insurance Company has to satisfy the entire award.
MFA No. 4857 to 4865/2011 are hereby dismissed, holding that the entire liability has to be satisfied by the appellant in these appeals. Accordingly, these appeals are disposed off. The amount in deposit if any in these appeals are directed to be transmitted to the Tribunal.
The amount deposited by the appellants in MFA No. 11584/2011 and 11589/2011 to MFA No. 11596/2011 are ordered to be refunded to the appellant herein.