Prarthana P.T. vs G.M. Shareef

K.L. Manjunath, J.—This appeal is by the claimants, being not satisfied with the quantum of compensation awarded by the tribunal and in deducting 50% of the compensation towards contributory negligence of their father deceased - Thimmayya. The claim petition was lodged by the appellants along with their grand father P.B. Muthanna before MACT in MVC No. 1310/2003, due to the death of their father Thimmayya in a road traffic accident occurred on 21.03.2003 at about 03:15 p.m. According to them, their father P.M. Thimmayya was driving his car bearing No. KA. 03/Z/5190 from Mangalore towards Vamanjur. When his car was in front of a garage at Vamanjur, a lorry bearing No. KA.20/2060 driven by respondent No. 1, coming from the opposite direction in a rash and negligent manner and dashed against the car of Thimmayya. On account of the impact, he sustained injuries and succumbed to the injuries on the same day at about 5:00 p.m.

According to the claimants, the deceased was earlier working as A.G.M. at M/s. Mangalore Chemical and Fertilizers Ltd., Panumbur. Later, he resigned the said post and joined M/s. Prakash Beedi Ltd., Mangalore as Chief Officer and drawing salary of Rs. 42,000/-. The deceased was aged about 54 years as on the date of his death.

Insurance company contended that the accident did not occur due to rash and negligent driving of the lorry and that the claim made by the claimants is excessive.

To prove the respective contentions, on behalf of the claimants four witnesses were examined, amongst them P.W. 1 is one of the claimant. P.W. 3 - the salary disbursing employer of M/s. Prakash Beedi, in order to prove the salary details of the deceased. On behalf of the claimants they relied upon Exs. P1 to P16.

The trial Court after considering the evidence led in by the parties held that the accident had occurred due to contributory negligence of deceased Thimmayya and the driver of the lorry. Accordingly, 50% of the compensation awarded has been deducted. The tribunal also held that the claimants in all are entitled for a compensation of Rs. 8,97,000/-.

Aggrieved by the finding of the Court below both on the question of negligence and quantum of compensation, the present appeal is filed.

We have heard the learned counsel for the parties.

The contention of the learned counsel for the appellants before us is that the Tribunal has committed an error in not considering the spot mahazar drawn by the police during the course of investigation which is marked as Ex. P3 and also the sketch which shows the scene of occurrence at Ex. P4. According to him, Thimmayya was proceeding on his left side of the road towards Vamanjur and the lorry was coming from Vamanjur towards Mangalore, the width of the road at the spot of the accident is 18 feet. The middle of the road as parted is 09 feet. But the accident has occurred at a distance of 11 feet from East towards west. Thereby, the driver of the lorry had crossed the middle portion of the road and he moved to his further right by two feet and therefore, learned counsel contends that the tribunal did not consider Ex. P4 - sketch drawn by the police. He also relied upon Ex. P3 - Spot Mahazar, it shows that the accident had occurred due to rash and negligent driving of the lorry by the driver. He further contends that the Tribunal did not consider the income of the deceased properly. According to him, if the deceased was earning salary of Rs. 42,000/- per month, his annual income could be Rs. 5,04,000/- and as per the income returns a sum of Rs. 1,08,000/- has been paid as tax. Therefore, the net income at the relevant point of time was Rs. 3,96,000/-. Out of which 1/3rd has to be deducted towards personal expenditure, it comes to Rs. 1,32,000/-. Therefore, loss of dependency was required to be held as Rs. 2,64,000/- and if the same is multiplied by ''11'', the claimants are entitled for a sum of Rs. 29,04,000/- under the head loss of dependency'' and in addition to that the claimants are entitled for a compensation under ''conventional heads'' in a sum of Rs. 1,00,000/- taken into consideration the date of accident. Thus, in all the learned counsel contends that the claimants are entitled for a sum of Rs. 30,04,000/-.

Per contra, respondents submits that the finding on the question of negligence need not be disturbed by this Court. Since the tribunal has given the finding on appreciation of the evidence lead in by the parties. He further contends that the tribunal is also justified in granting compensation and the same is required to be considered as just and proper and he requests to dismiss the appeal.

Having heard the learned counsel for the parties, we have to consider the following two points in this appeal:

Whether the accident had occurred due to contributory negligence of driver of both the vehicles or on account of the negligence of driver of the lorry?

Whether the compensation awarded by the tribunal requires to be enhanced?

So far as point No. 1 is concerned, we perused Exs. P3 and P4. It is not in dispute that both the vehicles were proceeding in a opposite direction. As per Ex. P4 - sketch, the width of the road is 18 feet. The accident had occurred 11 feet from east towards west and if the middle of the road is considered as 9 feet, what made the lorry driver to cross the middle portion of the road and take his vehicle further right by two feet. Ex. P3 also discloses the very same fact. The tribunal without considering these aspects, in the absence of evidence of the driver of the lorry and discarding Exs. P3 and P4, has wrongly held that the accident occurred due to contributory negligence. Therefore, we are of the view that finding of the tribunal on the question of negligence is perverse and liable to be set aside. Accordingly, we held point No. 1 in favour of the appellants and against the respondents.

So far as point No. 2 is concerned, Ex. P10 is the salary certificate and it is also not in dispute that prior to joining of M/s. Prakash Beedi Ltd., the deceased was drawing salary of Rs. 36,200/- at Mangalore Chemical and Fertilizers Limited. After resigning the said post, he has joined; Prakash Beedi. These facts are in dispute. Though, an attempt is made by the counsel for the respondents that the deceased was not a permanent employee of Prakash Beedi, he does not dispute the fact that on the date of accident the deceased was working in Prakash Beedi''s. Therefore, Ex. P10 has taken into consideration in order to compute the income of the deceased. If, we confirm the salary of the deceased was Rs. 42,000/- and considering the tax payable thereon, the actual income of the deceased per annum has to be considered as Rs. 3,96,000/- as calculated by the counsel for the appellants. Out of which 1/3rd has to be deducted towards personal expenses it comes to Rs. 1,32,000/-. Loss of dependency per annum has to be assessed on a sum of Rs. 2,64,000/- and if the same is multiplied by ''11'', the claimants are entitled for a total compensation of Rs. 29,04,000/-. In addition to that they are also entitled for a sum of Rs. 1,00,000/- towards the conventional heads, such as transportation of dead body, funeral expenses, loss of love and affection and loss to estate. In all, the claimants are entitled for a total compensation of Rs. 30,04,000/- with interest at 6% per annum from the date of petition till the date of payment. The entire compensation shall be proportioned between the appellants equally and in the amount payable to each of the appellants, 50% of the amount and interest to be thereon shall be kept in any nationalized bank as fixed deposit for a period of 05 years and thereafter each of them are entitled to withdraw the same.

Accordingly, the appeal is partly allowed.