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Judgment
N.K. Patil, J.—These two appeals are by the insurer of Honda Civic Car and claimants being aggrieved by the impugned judgment and award dated 2nd August 2012 passed in MVC No. 8311/2009 on the file of the VIII Additional Judge, Member MACT, Court of Small Causes, Bangalore City (hereinafter referred to as ''Tribunal'' for short).
The Tribunal by its judgment and award has awarded a sum of Rs. 20,00,600/- under different heads and awarded Rs. 8,00,240/- after fixing 60% contributory negligence on the part of the deceased driver of Omni Car and 40% on the part of the driver of the Honda Civic Car. Being aggrieved by the quantum of compensation and fixing 40% negligence on the part of the driver of Honda Civic Car, the insurer has filed the appeal and being aggrieved by the quantum and contributory negligence at 60% on the part of the deceased driver of Omni Car, the claimants have filed the appeal. Thus, both felt necessitated to present these two appeals respectively.
In brief, the facts of the case are:
"The 1st claimant is wife and 2nd claimant is son of the deceased, Nagaraj H.S. who was driving the Maruthi Omni Car and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased Nagaraj H.S. in the road traffic accident, contending that, when the deceased Nagaraj H.S., on 26.10.2008 at about 2.15 p.m was proceeding in a Maruthi Omni car bearing registration No. KA-02/MC 8815 along with the deceased daughter Kum. Sneha as well as his other family members. Near Thittanahosahalli gate, Bindiganavile on National High Way 48, the driver of Honda Civic Car being registration No. KA.03/MH.5665 came in a rash and negligent manner and dashed against the Maruthi Omni car and due to impact the driver of Maruthi Omni car i.e the deceased Nagaraj H.S. sustained grievous head injuries and succumbed to the same on the spot and other family members in the Maruthi Omni car sustained grievous and small injuries."
Further it is the case of the claimants that deceased was aged about 48 years as on the date of accident and was hale and healthy prior to the accident and he was working as Deputy General Manager in Quality Wire Products and a very committed person, getting salary of Rs. 20,220/- per month contributing his entire income towards the maintenance of the family and was an income tax assessee. Further it is case of the appellant that the deceased was aged about 48 years and appropriate multiplier is ''13'' and in the light judgment of Apex Court and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and another 30% can be added towards future prospectus of the deceased. Taking all these relevant factors into account the appellants have filed the instant appeal seeking enhancement of the compensation on the ground that amount awarded by the Tribunal is lower side and it requires enhancement.
Further it is the case of the claimants that Tribunal erred in fixing 60% contributory negligence on the part of the deceased -owner/driver of the Maruti omni Car as per the sketch and IMV report and other relevant material on record. As per the evidence of PW3 coupled with the evidence of eye witnesses PWs 1 and 2 the Tribunal ought not to have fixed 60% contributory negligence on the part of the deceased -driver of the Maruti Omni Car. The same may be reduced substantially.
Submission of Sri. B.C. Shivanne Gowda, learned counsel appearing for the Insurer is that, the Tribunal has erred in fixing 40% contributory negligence on the part of the driver of the Honda Civic Car and the same is contrary to the evidence on record. Further he has taken us through Exs. P3 and P5 sketch and IMV report and submitted that the nature of damage caused to both the vehicles has been rightly accepted and considered. The Police authority after due investigation has filed the charge sheet against the deceased, who is none other than the owner-cum-driver of Maruthi Omni car and the Tribunal has erred in accepting the evidence of PWs 1 to 3 contrary to the evidence on record.
Further he submitted that the wife is not dependent on the income of the deceased, as she herself is an income tax assessee and son is prosecuting his B.E course. Therefore 50% ought to have been deducted towards personal expenses of the deceased for calculation of loss of dependency. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified.
Per contra, the learned counsel appearing for the claimants Sri. Jaikumar inter alia contended and submitted that Tribunal has erred in not considering the oral and documentary evidence and other material and the specific case of wife of deceased that due to rash and negligent driving by the driver of the Honda Civic Car, the accident has occurred and due to the impact they lost deceased-owner/driver and daughter Kum.Sneha sustained grievous injury and later on succumbed to the same. Therefore, the Tribunal ought to have fixed reasonable contributory negligence on the part of the driver of both the vehicles but contrary to Ex. P3 and Ex. P4 sketch and IMV report, fixed contributory negligence at 60% on the part of the deceased driver of Maruti Omni Car which is disproportionate and liable to be modified, fixing reasonable contributory negligence on the part of the drivers of both vehicles. Further he submitted that in the light of the judgment of Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the deceased was aged about 48 years and working as Deputy Manager in Quality Wire Products and getting salary of Rs. 21,000/- p.m and therefore another 30% towards future prospects of the deceased should be added for computing loss of dependency and reasonable compensation towards loss of dependency and other conventional heads be awarded by modifying the judgment and award passed by the Tribunal.
After considering the submissions made by the learned counsel appearing for both claimants and insurer and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for consideration are:
"1. Whether the fixing of 60% contributory negligence on the part of the deceased driver of the Maruthi Omni Car is sustainable in law?
Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
Re-point No. 1: The occurrence of the accident and result of death of the deceased Nagaraj H.S. in the road traffic accident at about 2.15 p.m is not in dispute. Claimants are none other than the wife and son of the deceased which is also not in dispute. The vehicle involved in the accident is Maruthi Omni Car, bearing registration No. KA.02/MC.8815 and Honda Civic Car bearing registration No. KA.03/MH.5665, which is also not in dispute. Due to the rash and negligent driving by the driver of both the vehicles the accident has occurred. The police authority after due investigation has filed charge sheet against the driver of the Maruthi Omni Car-the deceased-Nagaraj which is also not in dispute. As rightly pointed out by the counsel appearing for Insurer, after careful consideration of Ex. P3- sketch and Ex. P5 IMV report, in paragraph Nos. 18-19 of the judgment and placing reliance on the judgment of Supreme Court reported in 2003(8) SCC Page 731 Municipal Corporation of Greater Bombay v. Sri. Laxman Iyer and 2009 KCCR 810 Naseer Banu v. Divisional Manager New India Assurance Company Ltd. The Tribunal has recorded the finding of fact that the deceased has contributed to the occurrence of accident to an extent of 60% and the driver of the Honda Civic car has contributed to an extent of 40% and answered the issue No. 1, partly in the affirmative.
It is significant to note that the sketch reflects the probability that the driver of Honda Civic vehicle might have come towards the right side of the road and in order to avoid the accident, the driver of Maruthi Omni car might have went towards his right side and dashed against the Honda Civic Car. The comparison of sketch and IMV report goes to show that the entire front portion of Honda Civic car is damaged which is an indication that the accident is head on collision. Further it emerges from the contents of the sketch that, the accident has taken place in the turning of a road. There is a curve near the accident place. The deceased Nagaraj was proceeding from Bangalore towards Hassan whereas the driver of Honda Civic Car was proceeding from Hassan towards Bangalore. As per Ex. P3 i.e sketch, the Maruthi Omni car has gone completely towards the right side of the road i.e towards northern side of the road. Generally when there is a turning, the drivers of both the vehicles ought to be cautious and drive the vehicles with due care. The Tribunal after due appreciation of the oral and documentary evidence on record and other material on record and by assigning valid and cogent reasons fixed contributory negligence at 60% on the part of the deceased driver of the Maruti Omni Car and 40% on the part of the driver of the Honda Civic Car which is just and reasonable and we don''t find any error or illegality and hence interference by this Court is not called for.
Re-point No. 2:-- Case of the claimants is that the deceased was aged about 48 years and working in Quality Wire Products, getting salary of Rs. 20,220/- per month and they have produced Ex. P14 and Ex. P15. Form-16 of the deceased issued by the employer and also Ex. P15 income tax returns filed by the deceased for the assessment year 2006-2007 shows the salary of Rs. 2,04,000/-, 2007-2008 shows salary of Rs. 2,28,000/- and 2008-2009 shows salary of Rs. 2,52,000/- p.a. As the deceased was working in a stable job and getting salary as per Income Tax returns at Rs. 21,000/- p.m and as rightly pointed out by the counsel appearing for the claimants, in the light of Judgment of Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, we can safely add 30% towards future prospects, which comes to Rs. 27,300/- p.m (Rs. 21,000/- + Rs. 6300/-) and annually it works out to Rs. 3,27,600/- (Rs. 27,300/-x12) out of it, if Rs. 35,160/- towards professional tax and income tax is deducted, it comes to Rs. 2,92,440/-. Out of it, as there are two dependents, son was entirely depending upon the income of the deceased, studying in B.E course, 1/3rd is to be deducted. Accordingly, 1/3rd of Rs. 2,92,440/-comes to Rs. 97,480/- and if it is deducted from Rs. 2,92,440/- it comes to Rs. 1,94,960/- and deceased aged about 48 years therefore the appropriate multiplier applicable is ''13''. Accordingly we award Rs. 25,34,480/-towards loss of dependency as against Rs. 19,65,600/- awarded by the Tribunal. The accident occurred in the year 2008. Therefore we deem it fit to award Rs. 50,000/- towards conventional heads towards loss of consortium, loss of love and affection, loss of estate and towards funeral and transportation expenses. In all it comes to Rs. 25,84,480/- out of it, if 60% is deducted towards contributory negligence on the part of the deceased, it comes to Rs. 10,33,792/- as against Rs. 8,00,240/- awarded by the Tribunal and there will be enhancement of Rs. 2,33,552/- with 6% interest per annum.
Having regard to the facts and circumstances of the case as stated above, appeal filed by the claimants is allowed in part and the appeal filed by the insurer is dismissed as devoid of merits. The impugned common judgment and award passed by the Tribunal dated 2nd August 2012 in MVC No. 8311/2009 is hereby modified. The total compensation payable comes to Rs. 10,33,792/- as against Rs. 8,00,240/- awarded by the Tribunal. There will be an enhancement of Rs. 2,33,552/- with 6% interest per annum.
The appellant/insurer is directed to deposit the enhanced compensation of Rs. 2,33,552/- with interest at 6% p.a., from the date of petition till the date of realization within three weeks from the date of receipt of a copy of this judgment.
Out of the enhanced compensation, Rs. 1,50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 2nd claimant Sanchith H.N/son of the deceased for a period of five years and renewable for another five years, with liberty to him to withdraw the interest accrued on it periodically.
The remaining Rs. 83,552/- with proportionate interest shall be released in favour of the 1st and 2nd claimants wife and son of the deceased immediately, on deposit by the insurer.
Draw the award, accordingly.
The amount in deposit by the insurer in MFA No. 10495/2012 shall be transmitted to the Jurisdictional Tribunal, forthwith.