S.P. Premakumari vs Paunraj

K.L. Manjunath, J.—The appellants being aggrieved by the dismissal of their claim petition by the MACT, Kumdapur, dated 23rd March, 2010. passed fin MVC No. 89/2005 the present appeal is filed.

The admitted facts in this appeal are as hereunder:-

The appellant No. 1 is the wife, appellant No. 2 is the minor son and the appellant No. 3 is the aged mother of one Nagaraj who was working as clerk in New India Assurance Company Ltd., drawing a sum of Rs. 10,375/- per month.

On 7-10-2014 at about 2.00 p.m. he was riding his scooter from Shastri Circle towards Sangam side on N.H. 17 of his left side when he was near Adarsha Hospital a lorry bearing No. KA. 21/A.3688 which was coming from the opposite direction in a rash and negligent manner dashed against the scooter of Nagaraj as a result of which he succumbed to injuries. Therefore, the claim petition was filed.

The owner of the lorry did not contest the matter. The respondent Insurance Company contended that the accident did not occur due to the rash and negligent driving of the lorry, on the contrary Nagaraj who was riding his scooter suddenly came to the wrong side and as a result of which the accident occurred in the middle of the road and the lorry driver could not avoid the accident since the bus was parked on the opposite direction. Therefore, the Insurance Company requested the Court to dismiss the claim petition. Based on the above pleadings the following issues were framed by the Court below.

"Whether petitioners prove that on 7.10.2004 at about 2.00 p.m. near Adarsha Hospital, Kundapura on N.H. 17 the deceased Nagaraj. K. met with an accident while proceeding in his Bajaj Chethak Scooter from Shasthri Park towards Sangam side?

Whether the petitioners further prove that, the said accident occurred due to rash and negligent act on the part of the driver of the Lorry bearing Reg.No. KA-21/A-3688, which came and dashed against the scooter of deceased Nagaraj and as a result of the same deceased Nagaraj K. fell down and sustained injuries and succumbed to the same?

Whether the respondent No. 2 proves that there exits contributory negligence of the petitioner? If So, to what extent?

Whether the petitioners are entitled for compensation? If so, to what extent and from whom?

What order or Award?

Addl. Issue:

Whether the second respondent proves that driver of the lorry was not having valid and effective D.L. to drive the same at the time of accident?"

In order to prove their respective contentions on behalf of the claimants in all 3 witnesses were examined. Amongst them the 1st appellant was P.W. 1 and she relied upon Exs. P-1 to P-11(a). On behalf of the respondents 3 witnesses were examined. Amongst them R.W. 1 is the driver of the lorry and the Insurance Company relied upon Exs. R-1 to R-8. The tribunal after appreciating the evidence held that the accident occurred due to the negligence of the deceased and further held that the accident did not occur due to the contributory negligence. In the circumstances, the claim petition came to be dismissed. Challenging the same the present appeal is filed.

Mr. Maheshkiran Shetty, learned counsel appearing for the appellants contends that the tribunal has committed a serious error in dismissing the claim petition on the ground that the accident occurred due to the negligence of the deceased and not on account of the negligence of the driver of the lorry. According to him, the tribunal did not consider Ex. R-1 the sketch produced by the Insurance Company. If the tribunal had really taken little care to look into Ex. R-1 the tribunal could not have held that the accident occurred due to the negligence of the deceased. According to him, both the vehicles were proceeding in the opposite direction on National Highway No. 17, the width of the asphalted portion is 24 feet. As per Ex. R-1 the sketch prepared by the police during the course of the investigation which has been relied upon by the Insurance Company discloses that from the place of the impact the distance towards the left edge of the road the scooter was found at 8 feet and 16 feet width towards the lorry. If the width of the road is 24 feet, the middle portion of the road has to be considered as 12 feet and if the accident has taken place 8 feet from the left edge of the scooter, and that the driver had crossed the center portion of the road by 4 feet and on account of the same, the accident occurred.

He further contends that the tribunal did not consider that it is the specific case of R.W. 1 the driver of the lorry that the bus was parked facing towards Bhatkal in front of Adarsha hospital, if it is so, the scooterist had no other go than to take his vehicle after the bus and if 12 feet is considered as middle portion of the road the bus occupies 6 to 7 feet width the distance between the middle portion of the left side and the bus was hardly 5 feet if the accident has taken place 3 feet away from the bus and 2 feet towards the left side of the scooterist from the middle portion of the road the tribunal was required to hold that the accident occurred due to the rash and negligent driving of the lorry driver. The tribunal did not consider that the driver without there being any space to keep his vehicle towards left side crossed the middle portion of the road and caused the accident. In the circumstances, he contends that the finding of the tribunal on the question of negligence is perverse and liable to be set aside.

Per contra, the learned counsel appearing for the respondent contends that the tribunal considering the evidence of R.W. 2 has rightly held that the accident occurred due to the negligence of the deceased. Therefore, the finding of the tribunal cannot be considered as perverse. In the circumstances, he requests the Court to dismiss the petition, since the finding of the tribunal is based on the evidence of R.W. 1.

Having heard the learned counsel appearing for the parties we have to consider the following two points in this appeal:

1) Whether the finding of the tribunal on the question of negligence is required to be interfered with?

2) If Point no. 1 is held in favour of the appellant what would be the compensation payable to the claimants and how much compensation has to be awarded to the claimants?

We have seen the entire records. Ex. R-1 is the sketch prepared by the police during the course of the investigation. Ex. R-1 is produced by the Insurance Company. It is not the case of the Insurance Company that the sketch prepared by the police during the course of the investigation is false or an incorrect sketch. In other words, when the Insurance Company has relied upon the sketch Ex. R-1 the tribunal was required to rely upon the said document and on considering the contents of Ex. R-1 the tribunal was required to give a finding on the question of negligence. On the contrary, the finding of the tribunal discloses that the sketch produced by respondent No. 1 is not proved by examining the persons who prepared the sketch. Therefore, we are of the view that the finding of the tribunal is perverse because Ex. R-1 is not produced by the claimants to prove the same. On the contrary it is produced by the Insurance Company. When the Insurance Company is relying upon Ex. R-1 the tribunal could not have drawn an adverse inference against the claimants. Such an inference is unknown to canons of law and only on this ground the finding on Point no. 1 has to be set aside.

Be that as it may, we have considered the evidence of R.W. 2 the driver. It is not the case of R.W. 2 that there was no space available or there was an obstruction for him to take his vehicle to his left side. When the width of the road was 24 feet and when the accident has taken place 16 feet towards his right side according to him, in front of Adarsha hospital the bus was parked, therefore he could not take his vehicle to the right side. However this evidence cannot be believed by any Court because the bus was parked on the opposite direction. Therefore, the question of taking the lorry to further right does not arise at all. Because it is not the case of the Insurance Company that the bus was parked in the same direction in which the lorry was proceeding. When there was ample space for him to keep his vehicle towards the left side there was no need for him to cross the middle portion of the centre of the road and cause the accident. Accordingly, we hold that the finding of the tribunal on the question of negligence has to be set aside. Accordingly, we hold that the accident was due to the rash and negligent driving of the lorry.

Having held so, the next point to be considered by is how the compensation has to be arrived at. Admittedly, the deceased was a permanent employee at New India Assurance Company Ltd. At the time of accident he was drawing a sum of Rs. 10,300/- after excluding the professional tax and other statutory deductions. Considering his age as 35 we have to consider 50% of his income towards future prospects. In all we have to consider his income at Rs. 15,450/-. Out of which 1/3rd has to be deducted towards personal expenses the loss of dependency would be Rs. 10,300/- per month, Rs. 1,23,600/- per annum. Since the deceased was aged 35 years the appropriate multiplier would be 16. Accordingly, we hold that the claimants are entitled for a sum of Rs. 19,77,600/- under the head loss of dependency.

On the date of the accident, the 1st claimant-the wife of the deceased was aged 28 years. The 2nd claimant minor son was aged 5 years, the 3rd claimant- the mother was 75 years. Keeping in view the age of the claimants we are inclined to award a sum of Rs. 2,00,000/- under the conventional heads such as loss of consortium, loss of love & affection, loss of estate and transportation of dead body and funeral expenses. Thus, the claimants are entitled for a sum Rs. 21,77,600/-. The same is rounded off to Rs. 21,78,000/- with interest.

In the result, the appeal is allowed. The Judgment & award passed by the MACT, Kundapur, in MVC No. 89/2005 dated 23rd March, 2010, is hereby set aside and in substitution the claim petition is allowed. The claimants are entitled for total compensation of Rs. 21,78,000/- with interest at 6% per annum from the date of the petition till the date of deposit.

Out of the total amount 50% of the amount be apportioned to the 1st appellant-wife. Out of which 30% shall be invested with accruing interest in any nationalised bank for a period of 5 years. She is entitled to draw periodical interest.

Out of the remaining 50%, 30% of the amount is apportioned to the 2nd claimant, the minor and the entire amount shall be invested in his name till he attains majority permitting the 1st appellant to draw the periodical interest and the remaining 20% shall be released to the 3rd appellant mother.