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Judgment
P.D. Waingankar, J.—Both these appeals are arising out of the judgment and award dated 5.3.2012 passed in MVC No. 1774/1997 on the file of VIII Addl. Judge, MACT-V, Bengaluru City.
The brief facts which gave rise to these appeals are as under:-
One Chand Pasha Sawar while driving the lorry bearing registration No. MWT 2067 loaded with Calcium Carbonate on 18.12.1989 at about 12.15 p.m. on N.H. 4, lost control over the lorry and thereby the lorry dashed against the road side tree. Due to the impact, the driver Chand Pasha sustained grievous injuries and died on the spot. His legal heirs i.e., his father, wife and children filed a claim petition under Section 166 of the M.V. Act before MACT claiming compensation of Rs. 3,50,000/- from the owner of the lorry and the insurer. The claim petition was contested by the respondent insurance company on the ground that the claim petition filed under Section 166 of the MV. Act is not maintainable since deceased Chand Pasha died on account of his own negligence. It was also contended that since he died during the course of employment under respondent No. 1, the claimants ought to have filed a claim petition under the provisions of Workmen''s Compensation Act, where negligence need not be proved. The claim petition came up for consideration before the Tribunal, before whom on behalf of the claimants, father of the deceased Sikandar Zainuddin Sawar was examined as PW-1 and Exs-P1 to P14 were marked. On behalf of the insurance company, one Chidambara was examined as RW-1. The MACT on appreciation of evidence determined the total compensation of Rs. 4,06,000/- and ordered both respondent Nos. 1 and 2 to pay Rs. 2,86,300/- with 6% interest being 70% of the total compensation determined, while recording a finding that deceased also contributed towards the accident to the extent of 30%. Aggrieved by the quantum of compensation awarded, the claimants preferred MFA No. 5891/2012, whereas aggrieved by the liability fastened, the insurance company preferred MFA No. 7776/2012.
We have heard the submissions made by both the learned counsel appearing for the appellants-claimants and the insurance company. Perused the records.
Learned counsel appearing for the appellants-claimants would submit that the compensation awarded by the tribunal is on the lower side not only under the head ''loss of dependency'', but also under other heads such as ''loss of love and affection'', ''loss of estate'' and ''loss of consortium'' and therefore it requires to be enhanced. He would further submit that the tribunal committed an error in recording a finding that the deceased also contributed towards the said accident to the extent of 30%. Hence, learned counsel has prayed to modify the award accordingly.
Per-contra, learned counsel appearing for the insurance company on the other hand would submit that since the accident occurred on account of total negligence on the part of the deceased-driver of the lorry, the claim petition under Section 166 of the M.V. Act filed by the claimants ought to have been dismissed as not maintainable. It is further submitted that even if claim petition is held to be maintainable, the compensation for which the claimants are entitled is under the provisions of Workmen''s compensation Act, 1923, which comes to Rs. 78,000/- and in that case, the tribunal ought to have directed the insurance company to pay an amount of Rs. 78,000/- and the tribunal ought to have directed the owner of the lorry to pay the remaining compensation amount. The tribunal committed an error in directing the insurance company to pay entire compensation amount. Learned counsel placed reliance on the decision of the Supreme Court reported in National Insurance Co. Ltd. Vs. Prembai Patel and Others, and decision reported in Kerala State Electricity Board and Another Vs. Valsala K and Another, , to buttress his arguments.
Having heard the submissions made by both the learned counsel appearing for the parties and on perusal of the material on record, the following points would arise for our determination:-
Whether the compensation awarded by the tribunal is just and reasonable?
Whether the tribunal is justified in directing the insurance company to pay entire compensation amount?
Point No. 1:-
Admittedly, the accident is of the year 1989. The fact that the deceased was working as a driver is not in dispute. His age at the time of the accident as 29 years is also not in dispute. There is no dispute as to the multiplier selected by the tribunal. The relationship of the claimants with the deceased is also not in dispute. The dispute is with regard to the finding recorded by the tribunal that the deceased also contributed towards the accident to the extent of 30% and the income of the deceased taken by the tribunal while determining the compensation. Sofar as the negligence is concerned, the claimants have absolutely no case. On account of the negligence of the driver of the lorry, the vehicle went off the road and dashed against the road side tree. Infact, the negligence of the deceased is cent percent. However, the tribunal has come to the conclusion that the negligence of the deceased is to the extent of 30%. Be that as it may, since it is a claim arising out of death of the only bread earner of the family, we do not find it just and proper to interfere with the said finding recorded by the tribunal.
Sofar as the income of the deceased is concerned, there is no evidence, much less, acceptable evidence such as salary certificate or pass book of the deceased has been produced. Under such circumstances, the income of the deceased taken by the tribunal at the rate of Rs. 3,000/- p.m. in the year 1989 seems to be just and reasonable. By deducting 1/3rd of the income of the deceased towards his ''personal and living expenses'' and by selecting multiplier ''16'', having regard to the age of the deceased as ''35'' years, the tribunal has rightly determined ''loss of dependency'' at Rs. 3,84,000/- and Rs. 22,000/- under other heads. Thus the tribunal has rightly determined the total compensation as Rs. 4,06,000/- and by deducting 30% of the same on account of negligence of the deceased-driver of the lorry, awarded compensation of Rs. 2,86,300/- together with 6% interest thereon. As such, there is no scope for enhancement of compensation as sought for by the claimants. The appeal filed by the claimants is liable to be dismissed.
Point No. 2:-
Coming to the liability fastened on the insurance company, it has to be stated that since the accident occurred on account of negligence of the deceased himself, the claim petition under Section 166 of the M.V. Act ought to have been dismissed as not maintainable. Infact the claimants ought to have filed claim petition under the provisions of Workmen''s Compensation Act. Since the deceased being a driver died during the course of his employment and since it is a claim arising out of death of the only bread earner of the family, who died in the year 1989, we deem it not just and proper to dismiss the claim petition and direct the claimants to file a petition under the provisions of Workmen''s Compensation Act. The accident had occurred in the year 1989 before coming into force the amendment to 1995 Act. So the total compensation for which the insurance company has to be held liable comes to Rs. 78,824/- and the remaining award amount has to be paid by the owner of the lorry. The judgment of the Supreme Court relied upon by the learned counsel for the insurance company is rightly applicable to the facts of this case. It has been clearly held in the case of National Insurance Co. Ltd. Vs. Prembai Patel and Others, that the liability of the insurance company to satisfy the award would be restricted to that arising under the Workmen''s Compensation Act. The owner of the vehicle would be liable to satisfy the remaining portion of the award. In view of the law laid down by the Supreme Court in the aforesaid decision relied upon by the Insurance company, we proceed to pass the following order:-
MFA No. 5891/2012 filed by the claimants is hereby dismissed.
MFA No. 7776/2012 filed by the appellant-insurance company is allowed-in-part. The judgment and award dated 5th March 2012 passed by VIII Addl. Judge and MACT-V, Bengaluru City stands modified directing the Insurance company to pay compensation amount of Rs. 78,824/- and respondent No. 1-owner of the lorry to pay Rs. 2,07,476/- out of the total compensation amount of Rs. 2,86,300/- awarded by the tribunal with proportionate interest at the rate of 6% p.a., from the date of petition till the date of realization.
Respondent Nos. 1 and 2 owner and the insurance company are directed to deposit the compensation amount of their share together with proportionate interest within a period of one month from the date of receipt of copy of this judgment.
The apportionment and investment shall be in the same proportion as ordered by the tribunal.
The amount in deposit in M.F.A. No. 7776/2012 by the insurer shall be transmitted to the Tribunal.