Ramanna and Others vs Alimoddin and Others

B. Sreenivas Gowda, J.—The claimant has preferred this appeal challenging the judgment and award passed by the Tribunal both on the ground of liability and quantum.

Heard the learned counsel appearing for the claimant and the learned counsel appearing for the insurer of offending vehicle. Notice to respondent No. 1 owner of the vehicle was held as sufficient as per order of this Court dated 01.04.2009 and he remained unrepresented.

The Tribunal by impugned judgment and award allowed the claim petition and awarded compensation of Rs. 2,39,000/- with interest @ 6% p.a. and directed the owner of the offending lorry to pay the said amount to the claimant and dismissed the claim petition against the insurer of the offending vehicle.

As there is no dispute regarding death of deceased Kashibai in a road traffic accident that occurred on 21.04.2000 due to rash and negligent driving of the lorry bearing registration No. MYI-4421 by its driver, the points arise for consideration in this appeal are:

"1. Whether the finding of the Tribunal on liability in fastening same on the owner of the lorry instead of fastening it on the insurer of offending vehicle is sustainable in law?

Whether compensation of Rs. 2,39,000/- with interest at 6% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?"

Sri Sharanabasappa K. Babshetty, learned counsel appearing for the claimant submits on 21.04.2000 at about 8:30 p.m. when deceased was proceeding from her house to a field in order to attend nature call, the offending lorry came from backside and dashed against her, as a result she succumbed to the injuries. Even though P.W. 2 an eye witness to the accident has clearly stated so, the Tribunal has committed an error in disbelieving his evidence and dismissing the claim petition against the insurer of the lorry.

Regarding quantum he submits income of deceased assessed by the Tribunal at Rs. 3,000/- per month is on the lower side. Consequently, compensation awarded towards loss of dependency is on the lower side and even compensation awarded towards conventional heads is also on the lower side. Therefore, he prays for allowing the appeal.

Sri S.S. Aspalli, learned counsel appearing for the insurer submits there is no illegality or infirmity in the findings of the Tribunal either on the liability or on quantum warranting interference of this Court and therefore he prays for dismissing the appeal.

In the complaint lodged to the Police on 21.04.2000 by one Huleppa S/o Malkappa Heroor which is marked as Ex. P1 it is stated that on 20.04.2000 about 80 to 90 people had been to Yallamma Temple situated at Bedavadagi in the offending lorry for Tonsure ceremony (jawala) of the complainant''s daughter. After completion of ceremony while they were returning to their village in the same lorry at Marthur Cross the lorry met with an accident due to rash and negligent driving of its driver as a result nine persons including deceased died and several persons sustained injuries. On the basis of the said complaint, the FIR was registered against the driver of the lorry. The police after investigation of the compliant have filed charge sheet against the driver of the lorry and the said charge sheet is marked as Ex. P3. List of persons travelled in the lorry was prepared and was made as part of the charge sheet. It is specifically stated that persons mentioned at Sl. Nos. 1 to 58 had sustained simple injuries and the persons named at Sl. Nos. 57 to 67 had sustained grievous injuries and they succumbed to the injuries. Name of deceased-Kashibai was figured at Sl. No. 64. This alone falsifies the case of the claimants that when deceased Kashibai was proceeding from her house towards a field to attend nature call the offending lorry came from the opposite direction and dashed against her. Further, P.W. 2-Bogappa was one of the persons who travelled in the lorry. He was figured at Sl. No. 56. He has deposed before the Tribunal that when deceased was proceeding to attend nature call the offending lorry dashed her from back side and she succumbed to the injuries. But he has not made any such statement before the police. This would go to show that he is a witness set up by the claimant for the purpose of securing compensation from the insurance company. In the further statement of the complainant, the complainant has stated the names of nine persons who travelled in the offending lorry and died in the accident. The deceased-Kashibai was one among those nine persons. This would also go to show that the deceased had travelled in the offending lorry as unauthorised occupant and she was not proceeding from her house towards field to attend nature call as contended by the claimants. As the learned counsel for the claimant contended that Bogappa has stated before the Police that the deceased was not travelling in the offending lorry at the time of accident and she was proceeding from her house towards field to attend nature call, the entire police records were summoned through the Court Commissioner and the learned counsel for the claimant after going through the said police record was unable to point out that Bogappa has made any such statement before the police.

There is no merit in the contention of the learned counsel for the claimants that in view this Court dismissing the appeal filed by the insurer in MFA No. 4615/2007 arising out of the same accident and confirming the liability fastened on the insurer, the liability is to be fastened on the insurer. The issue involved in the said case was whether the deceased - Hanmanth had travelled in the lorry along with goods or as a gratuitous passenger. The Tribunal on appreciation of the facts in the said case has held that he travelled along with the goods and fastened the liability on the insurer and this Court has dismissed the appeal. The facts in the said case are entirely different from the facts of the present case. Considering this material aspect of the matter, the Tribunal was justified in dismissing the claim petition against the insurer of the offending lorry and directing the owner of the lorry to pay compensation.

Now the point remains for consideration in this appeal is:

"Whether compensation of Rs. 2,39,000/- with interest at 6% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?"

Regarding Quantum:

The claim petition is filed by the elder brother of the deceased aged about 60 years who cannot be considered as dependent legal heir of the deceased. If that is so, compensation of Rs. 2,39,000/- awarded by the Tribunal is more than just entitlement and there is no scope for enhancement.

Hence, the appeal is dismissed as devoid of merit.

No order as to costs.