Shriram General Insurance Company Ltd. and Others vs Mahadevamma and Others

N.K. Patil, J.—The instant appeal and cross objection are arising out of the common impugned judgment and award dated 30.04.2012 passed in MVC No. 1266/2011 on the file of the Presiding Officer, Fast Track Court-1 and Additional MACT, Mysore, (hereinafter referred to as ''Tribunal'' for short).

The Tribunal by its judgment and award has awarded a sum of Rs. 3,06,000/- under different heads with interest at 6% per annum from the date of petition till the date of realisation, as against the claim of the claimants for a sum of Rs. 58,00,000/-, on account of the untimely death of the deceased late Sri. Ramalingegowda, in the road traffic accident.

In brief, the facts of the case are:

"The 1st Cross-Objector is the wife and 2nd, 3rd and 4th Cross-Objectors are the children of the deceased and they have filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation of Rs. 58,00,000/-, on account of the untimely death of the deceased in the road traffic accident, contending that, on 19.6.2011 at about 04.00 p.m., when the deceased Ramalingegowda was proceeding in a Motor Cycle bearing Registration No. KA-55/E-3237 towards the village Kaggalipura from his land in Bannur T. Narasipura Road and when he reached near the tank bund of Kaggalipura, at that time, a sand loaded lorry bearing Registration No. KA-11/8335 came from opposite direction i.e., from T. Narasipura side in a rash and negligent manner and dashed against the Motor Cycle. Due to the impact, the deceased sustained grievous injuries and died at the spot. Further contended that the deceased was aged about 60 years as on the date of the accident and was a retired supervisor of Sugar Factory and doing agricultural work, earning Rs. 10,000/- p.m. and looking after the welfare of the family. On account of untimely death of the deceased, the claimants have lost love and affection and they suffered socially and economically. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 3,06,000/- under different heads with interest at 6% p.a., from the date of petition till the date of realization. Being not satisfied with the compensation awarded by the Tribunal, the insurer has filed the appeal seeking reduction and the claimants have filed the Cross-Objection, seeking enhancement of compensation."

The learned counsel appearing for the insurer at the outset submits that the deceased did not possess a valid driving licence as on the date of the accident. Therefore, he submitted that 25% of contributory negligence may be fixed on the deceased due to violation of the rules of the Motor Vehicles Act. He further submitted that the compensation awarded by the Tribunal may be reduced by modifying the impugned judgment and award.

As against this, the learned Counsel appearing for the claimants/Cross Objectors submitted that the reasoning given by the Tribunal for fixing the entire liability on the part of the driver of the lorry is well founded and does not call for interference. The Tribunal after considering the oral and documentary evidence has passed the said order. The Tribunal also placed reliance on Ex. P3, rough sketch, which was drawn at the scene of occurrence by the concerned Investigating Officer, which clearly discloses that near the place of accident, the width of road is about 22 feet, the middle of the road comes to 11 feet and the deceased was proceeding at about 10 feet from its left and there is sufficient space of about 12 feet on its right side. At that time, a lorry came from opposite direction i.e., from T. Narasimpura side and it ought to have been proceed within 11 feet from its left, but it exceeded one feet towards right side and dashed to the motor cycle of the deceased. Further he submitted that merely on the ground that the deceased was not possessing a valid driving licence, it cannot be said that the deceased also contributed his negligence to the accident. The deceased is the third party and the insurer is bound to indemnify the award amount. Hence, the judgment and award passed by the Tribunal does not call for interference by this Court. Further he submitted that the Tribunal erred in not considering the fact that the deceased was the only earning member of the family and he was aged about 60 years and was a retired Supervisor of Sugar Factory and also doing agricultural work, earning Rs. 10,000/- p.m. Hence, he submits that the income of the deceased has to be reassessed out of which, 1/3rd has to be deducted towards personal expenses of the deceased and compensation awarded towards loss of dependency is liable to be enhanced by modifying the impugned judgment and award in the light of the Sarla Verma''s case.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

It is not in dispute that the deceased died in the road traffic accident. Further it is stated that, the deceased was aged about 60 years at the time of accident, hale and healthy and was a retired Supervisor of Sugar Factory and doing agricultural work, earning Rs. 10,000/- p.m. and looking after the welfare of the family. Hence, considering the facts and circumstances of the case, appreciation of the oral and documentary evidence available on record and taking into consideration the age, avocation, I can safely re-assess the income of the deceased at Rs. 6,500/- p.m., to meet the ends of justice. Since the children are major and wife is the only the dependent, I can safely deduct 50% of the income towards personal expenses of the deceased. Out of Rs. 6,500/- p.m., if 50% is deducted towards personal expenses of the deceased, remaining comes to Rs. 3,250/- p.m. The deceased was aged about 60 years as on the date of the accident. Hence, the appropriate multiplier is 9. Accordingly, I redetermine the loss of dependency at Rs. 3,51,000/- (Rs. 3,250/- x 12 x 9). Accordingly, the claimants are entitled for loss of dependency at Rs. 3,51,000/-.

Having regard to the facts of the case, I award Rs. 50,000/- towards loss of consortium, Rs. 25,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation of body, funeral expenses. Hence, the total compensation comes to Rs. 4,76,000/- as against Rs. 3,06,000/- awarded by the Tribunal.

The principal submission of the learned counsel for the insurer that the deceased was not possessing a valid driving licence as on the date of the accident and hence, the Tribunal ought to have fixed reasonable contributory negligence on the part of the deceased cannot be accepted for the reason that the Tribunal, after due appreciation of oral and documentary evidence on record and also placing reliance on Ex. P3, rough sketch which was drawn at the scene of occurrence by the concerned Investigating Officer, which clearly discloses that near the place of accident the width of road was about 22 feet, the middle of the road comes to 11 feet and the deceased was proceeding at about 10 feet from its left and there is sufficient space of about 12 feet on its right side. At that time, a lorry came from opposite direction i.e., from T. Narasimpura side and it ought to have proceeded within 11 feet from its left, but it exceeded one feet towards right side and dashed against the motor cycle of the deceased. This itself discloses that the driver of the lorry bearing Registration No. KA-11-8335 was solely responsible for the accident. Since the deceased was not having valid driving licence as on the date of the accident, it cannot be said that he also contributed to accident. The reasoning given by the Tribunal fixing the entire contributory negligence on the part of the driver of the lorry is well founded and does not call for interference.

Having regard to the facts and circumstances of the case as stated above, the appeal in MFA No. 1549/2013 filed by the insurer is dismissed as being devoid of merits. MFA. Crob No. 1/2014 filed by the claimants is allowed in part by modifying the impugned judgment and award passed by the Tribunal dated 30.04.2012 in MVC No. 1266/2011. The total compensation payable comes to Rs. 4,76,000/- as against Rs. 3,06,000/- awarded by the Tribunal.

The Insurer is directed to deposit the enhanced compensation of Rs. 1,70,000/- with interest at 9% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation, Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 1st Cross-Objector for a period of ten years and renewable for another five years, with liberty to her to withdraw the periodical interest accrued on it.

The remaining Rs. 70,000/- with proportionate interest shall be released in favour of the 1st Cross-Objector, immediately, on deposit by the Insurer.

The amount in deposit in MFA No. 1549/2013 shall be transmitted to the jurisdictional Tribunal immediately.

Draw the award, accordingly.

IA No. 2/13 for stay filed in MFA No. 1549/2013 does not survive and is disposed of as infructuous.