AI Structured Summary
Not yet generated for this judgment
Judgment
Aravind Kumar, J.—M.F.A. Nos. 9725/2008 and 10842/2008 have been preferred by the insurer as well as claimant being aggrieved by the judgment and award dated 07.05.2008 passed by the III Additional MACT, Davanagere in M.V.C. No. 517/2005.
M.F.A. No. 7692/2008 and M.F.A. No. 7693/2008 have been filed by the respective claimants in M.V.C. No. 437/2005 and M.V.C. No. 439/2005 being aggrieved by the judgment and award dated 31.08.2007 passed by the MACT, Davanagere not being satisfied with quantum of compensation awarded and as such seeking for enhancement.
For the purposes of convenience appeal numbers and corresponding M.V.C. cases together with compensation awarded are computed in the following tabular column:
I have heard the arguments of Sri Jagadish Kumar, learned counsel appearing for the claimants, Sri O. Mahesh, learned counsel for insurer and Sri A. Ananda Shetty, appearing for the insured owner of the bus bearing registration No. KA-18-5499. I have also perused the records secured from the trial Court.
Facts in brief, which has led to filing of these appeals, are as under:
M.V.C. Nos. 436, 437, 438, 439 & 440/2005 were filed under Section 166 of M.V. Act by the respective claimants seeking compensation on account of the injuries sustained in a road traffic accident that occurred on 13.01.2004. Said claim petitions came to be adjudicated by the II Additional Civil Judge (Sr. Dn.) and MACT-IV at Davanagere and awards came to be passed allowing the claim petitions in part by holding drivers of both the vehicles were responsible for the accident and apportioned the liability in the ratio of 60:40 between bus and jeep drivers.
M.V.C. No. 517/2005 was filed by the parents of the deceased Vidyashankar seeking compensation of Rs. 3,15,000/- on account of death of their son in the said accident that occurred on 13.01.2004. Said claim petition was adjudicated by I Additional Civil Judge (Sr. Dn.) and III Additional MACT, Davanagere. At this juncture itself, it requires to be noticed that though these petitions were relating to the same accident and had been filed by the same Advocate appearing for the claimants in all these cases yet no steps were taken to get the claim petitions clubbed and adjudicated by one Court/Tribunal to avoid conflicting decisions. In fact, the learned Advocates who represented the insured and the insurer were also one and the same. Even they did not take any steps to get all the claim petitions adjudicated by one Court/Tribunal. On account of this avoidable lapse, it has resulted in two divergent awards being passed viz., in M.V.C. Nos. 436 to 440/2005, it has been held in the common judgment and award passed on 31.08.2007 by the Tribunal that drivers of the two vehicles had contributed their negligence in the ratio of 60:40 (bus driver: jeep driver). Whereas, in M.V.C. No. 517/2005, jurisdictional Tribunal held that accident was solely due to the rash and negligent driving of the driver of the bus. On account of these two divergent findings, both insurer of the bus as well as the claimants have come up in appeal challenging the judgment and awards passed in the respective claim petitions assailing the correctness of the same.
It was contended by all the claimants before Tribunal that one Sri Shankar Naik was the driver of the Mahindra Jeep bearing registration No. KA-14/M-102 and said vehicle was proceeding from Basavarajpura to Chennagiri Disrict (Davanagere District) on 13.01.2004 and while they were crossing Basavarajapura Arasinaghatta, the bus bearing registration No. KA-18/A 5499 coming from the opposite direction driven by its driver in a rash and negligent manner dashed against the jeep at Karekal plantation cross and due to the impact, the driver''s son Vidyashankar died at the spot and other inmates sustained grievous injuries and as such they were shifted to Government Keregilchi and later on after being administered first aid treatment were shifted to C.G. Hospital, Davanagere for further treatment. Hence, claim petitions came to be filed by the respective claimants seeking compensation. Tribunal issued notices and after service of notice, the insurer of the bus appeared and filed statement of objections denying the averments made in the claim petition and contended that it was on account of the negligent driving of the jeep by its driver accident in question had occurred. Hence, it was contended that there is no liability on the insured of the bus required to be indemnified by the insurer.
M.V.C. Nos. 436/2005 to 440/2005 came to be disposed of on 31.08.2007. In the said claim petitions, Tribunal after analyzing the entire evidence on record arrived at a conclusion that accident in question took place in the center of the road. Hence, both the drivers have contributed their negligence towards the accident and both the drivers were negligent and on account of same, the contributory negligence was apportioned in the ratio of 60:40 between the drivers of bus and jeep. After the said award came to be passed the insurer has accepted the same and satisfied the award as is evident from the order sheet of the Tribunal.
Tribunal, which adjudicated M.V.C. No. 517/05 had also examined similar plea raised by the insurer and as such, it had formulated issue No. 1 and additional issue relating to negligent act for the cause of accident and while adjudicating on whom and to what extent the negligence is to be apportioned found that insurer of the bus in the said claim petition had not only examined its official witness but had also examined the owner/insured of the bus as well as its driver by taking on record the deposition recorded in M.V.C. Nos. 436/2005 to 446/2005 of the claimants therein as Exs. R5 and R6 and also the certified copy of the judgment and award passed in M.V.C. Nos. 436 to 440/2005, which came to be marked as Exs. R7 & R8 respectively. However, Tribunal, which adjudicated said M.V.C. No. 517/05, held that accident in question is solely due to rash and negligent driving of the bus by its driver. Hence, the insurer of the bus has filed the appeal M.F.A. No. 9725/2008 assailing the correctness of the said finding and contending that there is no liability on the insurer of the bus and even otherwise, the liability to indemnify the award has to be restricted to the extent of 60% as apportioned in the connected judgment and award rendered by a coordinate Tribunal in M.V.C. Nos. 436 to 440/2005 as per Exs. R7 and R8 and not to the extent of 100%. On the contrary the claimants in M.V.C. Nos. 436 to 440/2005 would support the judgment and award passed in M.V.C. No. 517/2005 to the extent of apportioning the liability or the negligence on the insured/insurer of the bus and pray for affirming the said finding and seeks for setting aside the findings recorded by the Tribunal in M.V.C. Nos. 436 to 440/2005 where under contributory negligence has been apportioned in the ratio of 60% : 40% between the husband the jeep. However, claimants in M.F.A. No. 10842/08 are contending that 100% liability should be fastened on the driver of the driver of the bus and as such, insured and insurer of bus will have to jointly indemnify the claim.
The contention of Mr. Jagadish Kumar in the claim petitions filed on behalf of the claimants in M.V.C. Nos. 437/2005, 439/2005 & 517/2005 is that the compensation awarded by the tribunal also requires to be enhanced since it is absolutely on the lower side. It is also to be noticed that the appeal filed against the judgment and award passed in M.V.C. No. 438/2005 dated 31.08.2007 in M.F.A. No. 7694/2008 has since been dismissed for default vide order dated 02.12.2011 by a coordinate bench of this Court and as on date said order has reached finality.
It is the contention of Sri O. Mahesh, learned counsel appearing for the insurer of the bus that the Tribunal committed a serious error in M.V.C. No. 517/2005 by not considering the documentary evidence tendered by insurer viz., Exs. R5 to R8, which indicated that in respect of the very same accident coordinate Tribunal had apportioned the contributory negligence between the driver of the bus and the driver of the jeep in the ratio of 60:40 and non consideration of this vital evidence though available on record has resulted in erroneous award being passed against the insurer of the bus and directing it to indemnify the award to an extent of 100%. Hence, he prays for setting aside the same. He would also contend that claim petition is bad for non-joinder of necessary party viz., the insured of the bus viz., Chandrashekar was not made a party and Siddaramappa who is said to be the present RC owner as on the date of the accident had been arrayed as a party and there was no policy in his name.
Per contra, Sri Jagadish Kumar, learned counsel appearing on behalf of the claimant would contend that Tribunal adjudicated the claim petitions M.V.C. No. 437/2005 and 439/2005 ought to have held that negligence of the bus driver was 100% as held in M.V.C. No. 517/05. Since, charge sheet has been filed against the driver of the bus and non-consideration of this vital evidence has resulted in great prejudice. He would also contend that compensation awarded in these two claim petitions as well as compensation awarded to the parents of the deceased minor boy is abysmally on the lower side and pray for same being enhanced by allowing the appeals.
Having heard the learned Advocates appearing for the parties and on perusal of the judgment and award as also the records secured from the tribunal, I am of the view that following points would arise for my consideration:
(i) Whether Tribunal in M.V.C. No. 517/2005 was correct in holding negligence of the driver of the bus at 100% or it should have been held that contributory negligence is to be apportioned in the ratio of 60:40 between the bus driver and the jeep driver as held by MACT in M.V.C. Nos. 437/2005 and 439/2005?
(ii) Whether compensation awarded by the Tribunal in M.V.C. Nos. 437/2005, 439/2005 and 517/2005 are just and reasonable or it requires to be enhanced? and, if so, to what extent?
(iii) What order?
Re: Point No. 1:
As already noticed hereinabove, it is on account of lapse committed by the learned Advocates appearing for both the parties before the Tribunal this situation has arisen viz., two divergent findings have been recorded by two different tribunals apportioning the contributory negligence in different proportions.
Tribunal, which adjudicated M.V.C. Nos. 436/2005 to 440/2005, had formulated the following points relating to the negligence and it reads as under:
(i) Whether the petitioners prove that they have sustained injuries in the alleged road traffic accident due to the rash and negligent act of the respondent No. 1/driver of the bus bearing reg. No. KA-18-A-5499?
(ii) Whether the respondents prove that the driver of the jeep had contributed his negligence to the accident?
Both these above points came to be answered in the affirmative by the Tribunal.
Perusal of the said award along with records secured from the Tribunal would indicate that on 13.01.2004 Mahindra jeep was proceeding from Basavarajpura to Chennagiri and it was driven by Sri Shankar Naik (claimant in M.V.C. No. 436/05) and when it reached Karakal plantation cross, which is a curve, the driver of the bus who was coming from the opposite direction is said to have dashed against the jeep. Both contended that each is responsible for the accident. In order to discern the truth, documentary as well as oral evidence available on record came to be analyzed by the Tribunal. The spot sketch, which came to be produced and marked as per Exs. R10 to R18 would indicate that accident in question had occurred in the middle of the road. Since, it is a curve, both the drivers have taken a sharp bend and as could be seen from the said sketch Ex. R18, the width of the road is around 18 ft. The driver of the jeep who is the claimant in M.V.C. No. 436/2005, had got himself examined as PW 1 and the fact that he was driving the jeep is also admitted by his wife-PW 2 (claimant in MVC No. 437/2005). Ex. P20, which is the deposition of PW 2 before the Principal Civil Judge (Jr. Dn.), Chennagiri wherein it is admitted by her that her children and husband were sitting in the front seat of the jeep and her minor son Vidyashankar died on account of the injury caused by the steering of the jeep. This evidence when read along with the sketch Ex. R18, would clearly indicate that accident in question occurred on the middle of the road and drivers of both the vehicles who were expected to take minimum care and precaution as is expected of a prudent driver had not taken such step and thereby it has resulted in the accident in question. Tribunal has noticed the fact that bus driver had crossed the center line of the road, and as such, his negligence is apportioned to an extent of 60% and that of the driver of the jeep to an extent of 40%. Said finding arrived at by the Tribunal is in consonance with the material available on record. In the light of the said, findings given by the Tribunal, which was also the subject matter for consideration in M.V.C. No. 517/2005, said Tribunal adjudicating the claim petition for reasons best known ignored the material evidence available on record namely certified copy of the deposition of the claimants in M.V.C. Nos. 436/2005 to 440/2005-Exs. R5 and R6; as also the judgment rendered by the Tribunal in M.V.C. Nos. 436/05 to 446/05-Exs. R7 and R8 and proceeded to hold driver of the bus was responsible for the accidentally only on the ground of charge sheet having been filed against him. Despite, said documentary evidence being available on record, Tribunal adjudicating M.V.C. No. 517/2005 has conveniently over looked the said documentary evidence and has jumped to a conclusion that only on account of the charge sheet having been filed against the driver of the bus as the prime reason for holding that driver of the bus was solely responsible for the accident and on account of his negligent driving accident had occurred.
Yet another factor, which swayed in the mind of the Tribunal is IMV report-Ex. P7 and the police intimation supplied under Section 110 of the Motor Vehicles Act as per Ex. P8. Non-consideration of the other material evidence available on record viz., the sketch, which was marked as Ex. R18 in M.V.C. Nos. 436/05 to 440/2005 and the judgment of the Tribunal rendered in the said claim petitions resulted in erroneously fastening the negligence on driver of the bus to an extent of 100%. After considering the said sketch and noticing that contributory negligence had been fixed in the ratio of 60:40 between the driver of the bus and the jeep, by the Tribunal in M.V.C. Nos. 436/2005 to 440/2005, finding recorded in M.V.C. No. 517/2005 is contrary to the material evidence available on record and as such it cannot be sustained. Hence, it has to be held that finding recorded by the Tribunal in M.V.C. No. 436/2005 to 440/05 by apportioning the contributory negligence in the ratio of 60:40 between the driver of the bus and the jeep is correct and the finding recorded by the Tribunal in M.V.C. No. 517/2005 is contrary to the findings recorded in M.V.C. Nos. 436/05 to 440/05 and as such, it requires to be modified. Accordingly, point No. 1 formulated herein above is answered in favour of the appellant-insurer in M.V.C. No. 9725/08 and contention raised by the claimant in this regard in M.V.C. No. 10842/2008 is hereby negatived.
Re: Point No. 2:
In M.V.C. No. 437/05, 439/05 and 517/05, the Tribunal has awarded a compensation of Rs. 3,000/-, Rs. 63,700/- and Rs. 1,65,000/- respectively.
Claimant in M.V.C. No. 437/05 is the wife of the driver of the jeep Smt. Geetha and she has produced the wound certificates as per Exs. P17 and P18. Tribunal having noticed these two documents has awarded a global compensation of Rs. 3,000/- including medical expenses. Perusal of the said wound certificates Exs. P17 & P18 would clearly indicate that she had sustained lacerated cut wound measuring 3 cm x 1 cm and also cut - wound over left front partial region of scalp apart from lacerated cut wound measuring 1 cm in front of the neck measuring 1 cm x 1 cm. Considering the fact that these wounds have been sutured and claimant would have spent considerable amounts towards medical expenses and the fact that on account of same she would have undergone pain and suffering, this Court is of the view that global compensation awarded by Tribunal is on the lower side and additional compensation of Rs. 17,000/- if awarded under all heads it would meet the ends of justice. Accordingly, it is hereby awarded.
Insofar as the compensation awarded by the tribunal to the claimants in M.V.C. No. 439/05 is concerned, it would indicate that claimant had produced the wound certificates as per Exs. P25 & P26. He had sustained fracture of right clavicle and fracture of 2nd 3rd 4th and 5th ribs on the right side apart from other lacerated wounds on partial region, there was tenderness over the neck and also tenderness over the right side of the chest. Tribunal has awarded following compensation.
Medical records would indicate that claimant had sustained loss of four teeth. He was treated as inpatient for three days. The Doctor who treated the claimant Sri G. Madhukaran has been examined as PW 6. He has opined that total disability sustained to the particular limb by the claimant is to an extent of 55% to 60% as per disability certificate Ex. P31. However, Tribunal has construed the whole body disability at 10%. No reasons are assigned by the tribunal at Para 18(3) of the award in question as to the basis, on which this 10% whole body disability is arrived at. Taking into consideration the particular limb disability assessed by the doctor is 60% and 1/3rd of the said disability being 20%, which would be whole body disability, this Court is of the considered view that whole body disability sustained by the claimant has to be construed at 20% and not at 10% and accordingly, compensation requires to be re-computed Tribunal has considered the income of the claimant at Rs. 75/- per day. The accident is of the year 2004 and the daily wages, which has been construed by the Tribunal at Rs. 75/- per day is marginally on the lower side and as such, it requires to be considered at Rs. 100/- per day or Rs. 3,000/- p.m. as against the claim of Rs. 6,000/- p.m. made by claimant and accordingly, compensation requires to be redetermined under the heads of "loss of future income" and "loss of income during laid up period." Claimant, on account of these injuries would have been unable to attend to his normal work or duties at least for a period of four months. Hence, he would be entitled to the compensation accordingly. Tribunal has not awarded any compensation towards loss of amenities. Taking into consideration that there is loss of four teeth and injury to the mandible portion, this Court is of the considered view that claimant would be entitled to compensation towards loss of amenities. On account of the injuries referred to hereinabove and also by taking into consideration the pain and suffering that would have been undergone by the claimant, reasonable compensation requires to be awarded by this Court since compensation awarded by the Tribunal is marginally on the lower side. In view of the discussion made hereinabove, claimant in M.V.C. No. 439/2005 would be entitled to additional compensation as under:
Claimants in M.V.C. No. 517/05 are the parents of the deceased minor boy Vidyashankar who was aged 4 years as on date of his death, Tribunal has awarded a sum of Rs. 1,65,000/-. Considering the age of the minor child being four years and taking into consideration the dicta laid down by Hon''ble Apex Court in the case of Kishan Gopal & Anr. vs. Lala and Ors. reported in Civil Appeal No. 7137/2013, wherein it has been held by the Hon''ble Apex Court to the following effect:
The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa & Ors. v. State of Bihar & Ors., while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs. 12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs. 25,000/- was awarded. Thus, a total sum of Rs. 1,57,000/- was awarded in that case. After noting the submission made on behalf of TISCO in the said case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs. 1.5 lakhs to which under the conventional heads a sum of Rs. 50,000/- should be added and thus total amount in each case would be Rs. 2 lakhs. Further, in the case referred to supra it has observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs. 12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs. 24,000/- p.a. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa''s case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years'' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs. 15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs. 30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation,, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas,, which is referred to in Lata Wadhwa''s case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs. 50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants. The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy, for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified.
this Court is of the considered view that the notional income of a non-earning member has to be taken into consideration at Rs. 30,000/- as held by Apex Court and compensation requires to be accordingly determined, which would come to a sum of Rs. 5 Lakhs, which includes Rs. 50,000/- paid towards conventional heads i.e., loss of love and affection, funeral expenses last rites by insurer and accordingly a sum of Rs. 5 Lakhs is hereby awarded. Since, Tribunal has awarded a sum of Rs. 1,65,000/- same requires to be deducted and when so deducted, the claimants would be entitled to additional compensation of Rs. 3,35,000/- and accordingly, it is hereby awarded in M.V.C. No. 517/2005.
Re: Point No. 3:
In the instant case, judgment and award passed by the Tribunal in M.V.C. Nos. 436/2005 to 440/2005, the liability has been apportioned between the driver of the jeep to an extent of 40% and the insurer of the said vehicle was not made party to the said claim proceedings inasmuch as the records would indicate that the owner of the said vehicle was none other than the brother of the claimant in M.V.C. No. 436/05 namely Sri Shankar Naik. Hence, finding recorded by the Tribunal directing the insurer of the bus to deposit 60% of the compensation awarded requires to be affirmed. Judgment of Hon''ble Apex Court relied upon by the learned counsel for the claimant in Pavan Kumar and Anr. vs. Harkishan Dass Mohan Lal & Ors. reported in Civil Appeal No. 5906/2008 disposed of on 29.01.2014 would not come to the claimants rescue and the finding recorded by the High Court therein to the extent of apportionment, which came to be upheld was on the premise that owner nor the insurer had filed any appeal or cross-objections against the finding of the High Court. Hence, the finding recorded by the Tribunal in M.V.C. Nos. 436/2005 to 440/2005 stands affirmed. In the result, I proceed to pass the following order:
(i) M.F.A. No. 9725/2008 filed by insurer of the bus is hereby allowed.
(ii) M.F.A. No. 10842/08 filed by the claimants is also hereby allowed and judgment and award passed by the MACT in M.V.C. No. 517/05 is hereby modified and it is held that petitioner is entitled to additional compensation of Rs. 3,35,000/- with interest at 6% p.a. from the date of petition till the date of payment and the insurer of the bus would be liable to indemnify by the claim to an extent of 60%.
(iii) Out of the above compensation awarded, 50% with proportionate interest shall be kept in a Fixed Deposit in any Nationalized bank for a period of three years and claimants would be entitled to draw periodical interest. The balance of 50% with proportionate interest is ordered to be released in favour of the claimants.
(iv) M.F.A. No. 7692/08 and 7693/08 are hereby allowed in part and the judgment and award passed in M.V.C. Nos. 437/05 & 439/05 are hereby modified and an additional compensation of Rs. 17,000/- and Rs. 1,23,675/- is hereby awarded, which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit, whichever is earlier.
(v) Respondent No. 3-insurer in M.F.A. Nos. 7692/2008 & 7693/2008 is directed to deposit 60% of the compensation awarded with proportionate interest before the jurisdictional tribunal within four weeks from the date of receipt of copy of this order.
(vi) Since, the compensation awarded in M.F.A. No. 7692/08 being marginal, entire amount is ordered to be released in favour of the claimant and out of the compensation awarded in M.F.A. No. 7693/2008 50% with proportionate interest shall be kept in a Fixed Deposit for a period of three years in any Nationalized bank of claimants choice and claimant would be entitled to draw periodical interest. The balance compensation with proportionate interest is ordered to be released in favour of the claimants.
(vii) Amount in deposit in M.F.A. No. 9725/08 is ordered to be transmitted to the jurisdictional tribunal by the Registry forthwith.
(viii) No costs.
(ix) Registry to re-transmit the records to respective tribunals forthwith.