Rekha and Others vs D.R. Keshavamurthy and Others

B. Manohar, J.—The claimant as well as the Insurance Company have filed these two appeals, challenging the judgment and award dated 16th October 2009 made in MVC No. 182/2008 passed by the Motor Accidents Claims Tribunal, Arakalgud (hereinafter referred to as the Tribunal'' for short).

MFA No. 4818/2010 is filed by the claimant, being not satisfied with the quantum of compensation awarded due to the death of husband of the first claimant, father of the second claimant and son of the claimants 3 and 4. Whereas, MFA No. 1099/2010 is filed by the New India Assurance Company Limited, being aggrieved by the quantum of compensation and also the finding regarding negligence on the part of rider of the insured vehicle.

Since the judgment and award passed by the Tribunal has been challenged by both the claimants and the insurance company, both the appeals are clubbed together and disposed of by this common judgment.

The claimants filed the claim petition contending that on 24-4-2006 at about 1.00 p.m., while the deceased Ramegowda was proceeding on the left side of the road by walking on Ramanathapura-Konanur Road, near Garudanahally village, a motorcycle bearing registration No. KA-12/2358 ridden by its rider in the rash and negligent manner and dashed against Ramegowda. As a result of which, the deceased fell down and sustained grievous injuries. Immediately he was shifted to Basavapattana Government Hospital and after the first aid treatment, he was shifted to S.C. Hospital, at Hassan and on advice of the doctor he was admitted to Shekhara Nursing Home at Bangalore. During the course of treatment, the said Ramegowda died on 30th April 2006 at about 9.30 p.m., due to the injuries sustained in the accident. The claimants claim that at the time of death, the deceased was aged about 28 years and doing agricultural and coolie work, earning more than Rs. 6,000/-p.m. Due to the death of the bread earner, the first claimant lost her husband at her young age, the son lost the love and affection of his father at the age of 2 years, and the parents lost their loving son at the fag end of their life. Further they had spent a sum of Rs. 75,000/-towards his treatment and Rs. 35,000/- funeral and obsequies and sought for compensation of Rs. 8,00,000/-.

In pursuance of the notice issued by the Tribunal, though respondents 1 and 2 entered appearance, the second respondent alone filed written statement denying the entire averments made in the claim petition and occurrence of the accident on 25-4-2006 and also involvement of the vehicle in question. It was further contended that the compensation claimed is exorbitant and there is no coverage of insurance policy for the said vehicle and sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. The claimants in order to prove their case, examined the first claimant as P.W. 1 and got marked the documents as Ex. P1 to Ex. P8. On behalf of the respondents, one of the officers of the Insurance Company was examined as R.W.1 and got marked the documents as Ex. R1 to Ex. R12.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, inquest report, IMV report and copy of the complaint held that due to the rash and negligent riding of the motorbike, the accident had occurred. Though there is delay of six days in filing the complaint, it was explained that the deceased was initially taken to the Government Hospital at Basavapattana Government Hospital after the first aid, he was shifted to S.C. Hospital at Hassan, again on advice of the doctor, he was shifted to Shekara Nursing Home at Bangalore. However he died during the treatment. Thereafter the complaint has been lodged. The delay has been satisfactorily explained. Hence, the claimants are entitled for compensation.

With regard to quantum of compensation is concerned, though the claimants claim that the deceased was doing agricultural and coolie work and earning Rs. 6,000/-p/m., no document has been produced to substantiate the same. In view of that, the Tribunal taking the income of the deceased as Rs. 4,000/- which is appropriate during that relevant period and deducting 1/3rd towards his personal expenditure, since the deceased was aged about 28 years applied the multiplier of 16, awarded a sum of Rs. 5,12,000/- towards loss of dependency and a sum of Rs. 85,000/- towards loss of expectancy, consortium, funeral expenses and loss of love and affection. In all, the Tribunal has awarded a sum of Rs. 5,97,000/- with interest at the rate of 6%p.a. from the date of petition till realization. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred MFA No. 4818/2010 seeking enhancement of compensation. Being aggrieved by the very same judgment and award passed by the Tribunal holding that the negligence is on the part of the rider of the insured vehicle, the New India Assurance Company Limited filed MFA No. 1099/2010.

I have carefully considered the arguments addressed by Sri. N.R. Ravikumar, learned counsel appearing for the claimants and Sri. M.S. Rajendra Prasad, learned Senior Counsel appearing for the Insurance Company and perused the judgment and award, oral and documentary evidence.

On perusal of the records it is clear that the deceased Ramegowda died on 30-4-2006 in the road traffic accident occurred on 25-4-2006, in view of the rash and negligent riding of the offending vehicle. However, the Insurance Company contended that there is no negligence on the part of the rider of the motorbike. Due to the negligence on the part of the deceased himself, the accident had occurred. The complaint has been lodged 5 days after the accident. Further, the quantum of compensation has been awarded taking into consideration income of Rs. 4,000/- p.m. which is on the higher side. The Tribunal after considering the oral and documentary evidence and after taking into consideration the spot mahazar, inquest report, IMV report and also statement of the complainant, held that due to the rash and negligent riding of the offending vehicle the accident had occurred. It is the duty of the rider of the motorbike to ride the vehicle safely when he is proceeding on the road. The police records clearly disclose that due to the rash and negligent riding of the offending vehicle, the accident had occurred. There is no substance in the submission of the learned Senior Counsel appearing for the Insurance Company that there is no negligence on the part of the rider of the motorbike.

With regard to quantum of compensation is concerned, though the claimants claim that at the time of death, the deceased was aged about 28 years and doing agricultural and coolie work, earning Rs. 6,000/-p.m., no document has been produced to substantiate the same. The accident occurred in the year 2006. During that relevant period, the agricultural coolie usually was earning Rs. 4,000/- p.m. In view of that the Tribunal had taken the income of Rs. 4,000/-p.m., and deducted 1/3rd towards his personal expenditure. However while applying the multiplier the Tribunal committed a mistake. Instead of applying the multiplier of 17, adopted the multiplier of 16 and awarded compensation. Further, the wife has lost her husband in her young age and the son lost his father at the age of 2 years. The compensation awarded towards loss of love and affection is also on the lower side. Hence, the claimants are entitled for enhanced compensation. Taking into consideration the income of the deceased as Rs. 4,000/- p.m. and deducting 1/3rd towards his personal expenditure and applying multiplier 17, the claimants are entitled to a sum of Rs. 5,44,000/- as against 5,12,000/-towards loss of dependency awarded by the Tribunal. Further, the claimants 1 and 2 are entitled for compensation of Rs. 1,50,000/- towards love and affection deducting a sum of Rs. 20,000/- already awarded by the Tribunal and they are entitled for a sum of Rs. 1,30,000/-. Hence, the claimants are entitled for enhanced compensation of the Rs. 1,62,000/- in addition to Rs. 5,97,000/- awarded by the Tribunal with interest at the rate of 6% p.a.

In view of the above finding, MFA No. 1099/2010 filed by the Insurance Company is liable to be dismissed. Accordingly, I pass the following

MFA No. 4818/2010 filed by the claimants is allowed in part and the claimants are entitled for enhanced compensation of Rs. 1,62,000/- with interest at the rate of 6% p.a. MFA No. 1099/2010 filed by the Insurance Company is dismissed.

Out of the enhanced compensation of Rs. 1,62,000/-, Rs. 50,000/- is directed to be deposited in any Nationalized Bank in the name of first claimant for a period of 5 years and another sum of Rs. 50,000/- is directed to deposited in the name of 2nd claimant in any Nationalized Bank till he attains majority. However, the first claimant is permitted to withdraw the interest periodically. The remaining amount with occurred interest be released in favour of the claimants.