Rumy M. Sangama and Others vs B. Vasanthashetty and Others

B. Sreenivas Gowda, J.

This appeal is by the claimants challenging the judgment and award of the Tribunal both on the ground of negligence as well as quantum.

Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

The case of the claimants in brief are, on 27.05.2004 at about 4.15 p.m. when deceased by name Manohar was proceeding in his Gipsy jeep bearing Reg. No. NLN 6023 towards B.C. Road from Kalladaka Village and when he reached near Golta Majalu Village Narahari Nagar, at that time, a Maxi cab bearing Regn. No. TN-23 T-3456 came from the opposite direction in a rash and negligent manner and dashed to the Gipsy Jeep of the deceased Manohar. Due to this impact, Jeep turned towards east facing, at that time another Lorry bearing Reg. No. KA-01-A-5298 came from east and dashed to the Jeep. As a result, the deceased Manohar was thrown out of the Jeep and sustained grievous injuries. He was admitted to Somayaji Hospital at B.C. Road for first aid treatment and then shifted to City Hospital at Mangalore and took treatment as an inpatient, later on, he died on 16.07.2004.

Learned counsel for the claimants submits that though deceased was driving his jeep on the left side of the road by following traffic rules and regulations, slowly and carefully, the accident had occurred due to rash and negligent driving of drivers of Maxi Cab and Lorry and the Tribunal has committed has error in holding that the accident had occurred due to contributory negligence of deceased and drivers of the other vehicles at the rate of 1/3rd each. He further submits that quantum of compensation awarded by the Tribunal is not just and proper and he prays for allowing the appeal as prayed for.

The learned counsel for the insurers of Maxi Cab and lorry submit that there is no error in the findings of the Tribunal either on negligence or on quantum warranting interference of this Court and they pray for dismissal of the appeal.

After hearing the learned counsel appearing for the parties and perusing the judgment and award of the Tribunal, the points that arises for my consideration in the appeal are:

1) Whether the finding of the Tribunal on ''negligence'' holding that the accident has occurred due to contributory negligence of drivers of Maxi Cab, Lorry and deceased in driving his gipsy Jeep at the rate of 1/3rd each is sustainable in law?

2) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"

Regarding Point No. 1: It is not in dispute that the accident has taken place due to involvement of Jeep, Maxi Cab and Lorry. The Jeep was driven by the deceased. The claimants in support of their contention that the deceased was driving the Jeep on the left side of the road slowly and carefully by observing Traffic rules and regulations examined wife of the deceased who is an eye witness to the accident as PW-1. The Tribunal, considering the oral evidence of claimants and the FIR, spot mahazar, rough sketch, IMV report and chargesheet produced as Exs. P1 to P5 and P7 respectively, has held that the accident has occurred due to contributory negligence of deceased and drivers of Maxi Cab and Lorry respectively at the rate of 1/3rd each. I have carefully gone through the findings of the Tribunal on negligence and do not find any error warranting my interference. Hence, the finding of the Tribunal on negligence is conferred. Point No. 1 is answered accordingly.

Regarding Point No. 2: The claimants in support of their contentions that the deceased by doing business was earning Rs. 50,000/- to Rs. 60,000/- have examined the first claimant - wife of the deceased as PW-1 and have produced IT returns and certificate regarding import and export of articles manufactured by her husband. Ex. P18 is the Certificate of Import and Export and P20 is another certificate and Ex. P19 is IT returns. Exs. P18 and P20 would only show that the deceased was doing some business. Ex. P19 would show how much worth of transaction he was doing. However these documents would not indicate how much income the deceased was earning. Therefore, considering his age (50 years), the year of accident as 2004 and his avocation as businessman, his income could be easily assessed at Rs. 8,000/- per month. As all the three claimants were depending on the income of the deceased, 1/3rd of his income is to be deducted towards his personal expenses and the remaining 2/3rd is to be taken as his contribution towards family. The multiplier of ''13'' applied by the Tribunal based on the age of deceased is just and proper. So, loss of dependency would work at Rs. 8,000 X 2/3 X 12 X 13 = Rs. 8,32,000/- and it is awarded as against Rs. 5,20,000/- awarded by the Tribunal.

The first claimant has lost her husband at her young age and the second and third claimants have lost their father at their tender age. Therefore, a sum of Rs. 50,000/- is awarded towards loss of consortium in respect of first claimant and Rs. 50,000/- is awarded towards loss of love and affection of claimants 2 and 3 at the rate of Rs. 25,000/- each and a sum of Rs. 25,000/- is awarded towards transportation of dead body and funeral expenses. The claimants have produced medical bills for Rs. 1,65,284/- regarding treatment provided to the deceased and the Tribunal has awarded a sum of Rs. 1,65,000/- towards medical expenses but has not awarded any amount towards incidental expenses. Thus, a sum of Rs. 1,75,000/- is awarded towards medical and incidental expenses.

Thus, the claimants are entitled for the following compensation:-

From the compensation of Rs. 11,32,000/-, 1/3 towards negligence contributed by the deceased amounting to Rs. 37,733/- is to be deducted and claimants are entitled for 2/3rd of 11,32,000/- amounting to Rs. 7,54,666/- as against Rs. 4,73,334/- awarded by the Tribunal.

Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated herein. The claimants are entitled for Rs. 7,54,666/- as against Rs. 4,73,334/- awarded by the Tribunal and entitled for additional compensation of Rs. 2,81,332/- with interest at 6% per annum from the date of petition till the date of realization.

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. The respondents 3 and 6 are directed to pay additional compensation in equal proportion as directed by the Tribunal.

The apportionment, deposit and release of additional compensation among the claimants shall be in the ratio of the award of the Tribunal.

Sri. A.N. Krishna Swamy is granted two weeks'' time to file his Vakalath to Respondents No. 3 and 6.