Sanna Tayappa and Others vs Moinuddin and Others

B. Sreenivas Gowda, J.—These appeals are by the claimants challenging the judgment and awards passed by the Tribunal on the ground of liability and quantum.

I have heard the learned counsel appearing for the claimants and the learned counsel appearing for the insurer of offending tractor.

As there is no dispute regarding death of Vijamma and Dodda Tayappa in the road traffic accident that occurred on 15.05.2006 due to rash and negligent driving of the driver of the tractor bearing registration No. AP-22-K-5635, the points that arise for consideration are as under:

1) Whether finding of the Tribunal on liability in fastening the same on the owner of the tractor instead of fastening it on the insurer of tractor is sustainable in law?

2) Whether quantum of compensation awarded in each case is just and reasonable or does it call for enhancement?

Sri B.M. Kinikeri the learned counsel for the appellants/claimants submits though PW.1 and PW.2 in their evidence have stated that on 15.05.2006 when deceased Vijamma and Dodda Tayappa were returning by walk at that time the offending tractor came from the opposite direction in a rash and negligent manner and dashed against them, as a result Vijamma died on the spot and Dodda Tayappa sustained grievous injuries and died in the Hospital the Tribunal has committed an error in disbelieving her evidence and coming to the conclusion that deceased persons had travelled in the trailer as gratuitous passengers and their risk is not covered under the policy. He submits compensation awarded by the Tribunal is not just and reasonable it is on the lower side and require to be enhanced in each case and therefore he prays for allowing the appeals as prayed for.

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

The complaint regarding accident was lodged to the police by Sanna Tayappa who is none other than the husband of deceased Vijamma and he was examined as PW.1. PW.1 in his complaint marked as Ex. P1 has stated that as there was a marriage of his sister''s (Mahadevamma''s) daughter on 15.05.2006 at Karnagi village with Anjappa s/o Venkatappa resident of their village and to attend the said marriage about 20 persons including him together proceeded in a tractor on 14.05.2006 to go to Karnagi and after the marriage while returning in the said tractor the driver Raju s/o Narasingappa started driving the tractor in a rash and negligent manner and therefore he was requested to drive the tractor slowly but he did not listen to their advice and continued to drive the vehicle with high speed in a rash and negligent manner as a result near Raladoddi cross he lost control over the tractor and as a result tractor turned turtled and due to impact his wife Vijamma died on the spot and his elder brother Dodda Tayappa sustained grievous injuries and several persons had also sustained minor injuries. As per the complaint, FIR marked as Ex. P1 was registered against the driver of the tractor and police after investigating the matter filed charge sheet against the driver of the tractor. Complainant Sanna Tayappa was arrayed as one of the charge sheeted witnesses. The charge sheet was marked as Ex. P2. In the charge sheet it is mentioned that on account of rash and negligent driving of the tractor by its driver on Karnagi-Idlur road the driver lost control over the tractor consequently tractor and trailer turned turtled as a result Vijamma died on the spot and Dodda Tayappa sustained grievous injuries. Whereas in the claim petition filed by the legal representatives of Dodda Tayappa it is stated that on 15.05.2006 deceased (Dodda Tayappa) and his younger brother''s wife Vijamma while returning to their village Karnagi from Raladoddi village by walk near Raladoddi cross of Idlur-Karnagi road a tractor bearing registration No. AP-22-K-5635 came from the opposite direction in high speed in a rash and negligent manner and hit the deceased Vijamma and turned turtled due to which deceased (Dodda Tayappa) and Vijamma sustained fatal injuries.

PW.1 Narasamma W/o deceased Dodda Tayappa in her evidence has stated that on 15.05.2006 at about 4:30 p.m. at Raladoddi cross on Idlor-Karnagi road her husband Dodda Tayappa and his younger brother''s (Sanna Tayappa''s) wife Vijamma were returning to their village by walk, at that time the tractor came from the opposite direction in high speed and hit the deceased Dodda Tayappa and Vijamma as a result Vijamma died on the spot and Dodda Tayappa sustained grievous injuries and he was taken to the hospital.

In her cross-examination she has stated that on that day her husband coming by walk on Idlor Karanagi road at Raladoddi cross road accident took place. She does not know whether Mahadevamma is related to her husband Sanna Tayappa as sister.

The complainant Sanna Tayappa was examined as PW.2 and in his examination-in-chief he has stated that on 15.05.2006 at about 4:00 p.m. when his wife Vijamma and his brother Dodda Tayappa were going near Raldoddi cross curve on Idlor-Karnagi road by walk a tractor bearing registration No. AP-22-K-5635 came from opposite direction in high speed in a rash and negligent manner and dashed against them and turned turtled. His wife died on the spot and his brother died at General Hospital Narayanpeth (A.P.) while taking treatment in the said hospital.

In his cross-examination he has stated as under:

It is true that I have given complaint to the police about the accident. On my complaint the police have registered accident case. It is false to say I have mentioned in the complaint when we were travelling in the tractor-trailer to attend the marriage of sister''s daughter, the offending tractor-trailer turned turtled. I did not visit the police station subsequent to lodging of the complaint. Mahadevamma is not my relative. It is false to say that we hired the offending tractor trailer to travel to attend function.

It is to be seen that PW.2 in his cross-examination has admitted in unequivocal terms that he has lodged the complaint to the police about the accident. A careful reading of the complaint would go to show that marriage of complainant''s sister''s daughter Venkatamma (Mahadevamma''s daughter) was scheduled to be held on 15.05.5006 with one Anjappa s/o Venkatappa resident of Karnagi village therefore about 20 persons including Vijamma wife of the complainant and his brother Dodda Tayappa had been to Karnagi in the offending tractor-trailer. After the marriage while they were returning to their village in the said tractor-trailer, after crossing Jaigram near Idlor, the driver started driving the tractor-trailer with high speed, hence they requested him to drive slowly but he did not listen to their advice and continued to drive with high speed in a rash and negligent manner, as a result at Raladoddi cross he could not control the tractor, as a result tractor-trailer turned turtled and due to impact his wife Vijamma died on the spot and his brother Dodda Tayappa sustained grievous injuries and later he died in the hospital. It is neither averred in the claim petition nor deposed by the claimants in their evidence stating that the complainant does not know Kannada and contents of complaint recorded in Kannada version is contrary to what he has stated before the police in Telugu version. In the claim petition they have stated that on 15.05.2006 at 4:00 p.m. when deceased Dodda Tayappa and his younger brother''s wife Vijamma were returning back from Raladoddi to their village Karnagi by walk a tractor came from opposite direction and dashed against them as a result they sustained injuries and died. The place from where they were returning to their village and how they had been to the said place are deliberately kept silent. In the evidence of PWs. 1 and 2 also they would not say the place from where they were returning and how they had been to the said place. They pleaded cleverly that while returning at Raladoddi cross by walk and they repeated the word returning by walk, as they were feeling guilty of their conduct.

PW.2 the complainant no where in his evidence says that he does not know Kannada he has furnished information to the police in Telugu version and complaint recorded in Kannada version is not as stated by him in Telugu version.

In this backdrop, the judgment cited by the learned counsel for the appellants-claimants in the case of National Insurance Co. Ltd. Vs. Rattani and Others, is not applicable to the case on hand. The facts of the said case were, in the claim petition as well as in the evidence it is stated claimants while returning in the offending vehicle after the marriage the accident has taken place. For the first time in their evidence it is stated that they were returning along with dowry articles and other things. The insurer has not adduced contra evidence. Therefore, the Court has held that they were returning along with their goods (dowry articles) and not as gratuitous passengers as contended by the insurer and fastened the liability on the insurer. In the instant case, PW. 1 wife of Dodda Tayappa in her cross-examination has stated that she does not know who is Mahadevamma who is none other than the sister of her husband. There was no need for PW.1 and PW.2 to deny the relationship of Mahadevamma who is none other than the sister of the complainant and his deceased brother Dodda Tayappa. They have done so, as they had been to Karnagi in the offending tractor-trailer for the marriage of the said Mahadevamm''s daughter and to get compensation from insurer of the offending tractor. One more thing is to be noted is the trailer involved in the accident was not insured as on the date of accident. If the trailer was insured claimants must have set up a different story like they were travelling in the trailer as coolies under the owner of the trailer. There is no quarrel about the legal position that contents of charge sheet alone cannot be treated as conclusive proof but in the instant case except PW.1 and PW.2 the claimants have not adduced any other evidence nor they have examined any other witnesses to the charge sheet.

The Tribunal considering this material aspect of matter was justified in dismissing the claim petition against the insurer of the tractor.

I have carefully gone through the finding of the Tribunal on liability and I do not find any reason to take a different view than the one taken by the Tribunal. Accordingly, the finding of the Tribunal on liability is confirmed.

Regarding Quantum:

MFA No. 30008/2009 arising out of MVC No. 274/2007. It is a case of death of one Dodda Tayappa. His wife, son and daughter filed claim petition seeking compensation under section 166 of M.V. Act.

The claimants in support of their contention that deceased Dodda Tayappa by working as a stone cutter was earning Rs. 200/- per day have examined the first claimant - wife of deceased as PW.1 and complainant Sanna Tayappa as PW.2. Except that no other evidence was adduced regarding avocation and income of the deceased. In the absence of proof of income considering the age of deceased as 50 years, year of accident as 2006 and avocation of deceased as daily wager, his income could be easily assessed at Rs. 3,500/- per month as against Rs. 3,000/- assessed by the Tribunal. Considering number of dependents, 1/3rd of the income of deceased deducted by the Tribunal towards his personal expenses is sound and proper and multiplier applicable to his age group is 13 instead of 12 applied by the Tribunal. If so, loss of dependency works out to Rs. 3,64,000/- (Rs. 3,500/- x 2/3 x 12 x 13) and it is awarded.

In addition to that a sum of Rs. 25,000/- is awarded to the first claimant towards loss of consortium and a sum of Rs. 40,000/- is awarded to claimants 2 and 3 towards loss of love and affection at the rate of Rs. 20,000/- each. A sum of Rs. 10,000/- is awarded towards loss of estate and a sum of Rs. 10,000/- is awarded towards transportation of dead body and funeral expenses. In all a sum of Rs. 85,000/- is awarded towards conventional heads.

Thus, in all, the claimants are entitled for the following compensation:

Accordingly, appeal is allowed in part and the judgment and award passed by the Tribunal is modified. Claimants are entitled for an additional compensation of Rs. 1,02,000/- with interest at 6% per annum from the date of petition till the date of realization.

Insurance company is directed to deposit the additional compensation amount together with interest within 2 months from the date of receipt of a copy of this judgment.

Apportionment, deposit and release of the enhanced compensation among the claimants will be in the ratio of the award of the Tribunal.

IN MFA No. 30007/2009 arising out of MVC No. 275/2007. It is a case of death of one Vijamma. Claim petition was filed by her husband seeking compensation under section 166 of M.V. Act.

The claimant in support of his contention that his deceased wife by working as a coolie was earning Rs. 100/- per day has examined himself as PW.2. Even in the absence of proof of income considering her age as 25 years, year of accident as 2006 and avocation as coolie, her income could be assessed at Rs. 3,000/- per month as claimed by the claimant. In the facts and circumstances of the case 1/3rd of the income of deceased deducted by the Tribunal towards her personal expenses is sound and proper. Multiplier of 17 is to be applied based on the age of the claimant who is aged about 30 years, if so, loss of dependency works out to Rs. 4,08,000/- (Rs. 3,000/- x 2/3 x 12 x 17) and it is awarded.

In addition to that a sum of Rs. 25,000/- is awarded towards loss of consortium and a sum of Rs. 25,000/- is awarded towards loss of estate, transportation of dead body and funeral expenses. In all a sum of Rs. 50,000/- is awarded towards conventional heads.

Thus, in all, the claimants are entitled for the following compensation:

Accordingly, appeal is allowed in part and the judgment and award passed by the Tribunal is modified. Claimant is entitled for an additional compensation of Rs. 1,98,000/- with interest at 6% per annum from the date of petition till the date of realization.

Insurance company is directed to deposit the additional compensation amount together with interest within 2 months from the date of receipt of a copy of this judgment.

Apportionment, deposit and release of the enhanced compensation among the claimants will be in the ratio of the award of the Tribunal.

The judgment and award is confirmed in respect of liability is concerned and it is modified in respect of quantum.

Claimants are entitled for additional compensation mentioned against their cases and they are entitled to recover compensation awarded by the Tribunal and additional compensation awarded by this Court from the owner of the tractor who is directed to pay compensation within two months from the date of receipt of copy of this judgment.

Draw up the award accordingly.

No order as to costs.