THE MANAGER , UNITED INDIA INSURANCE CO. LTD. Vs ABDUL KHADER & ORS.

Sl.No.,Heads,Amount Rs.

1,Loss of dependency,"30,60,000/-

2,Loss of consortium,"1,00,000/-

3,Loss of love and affection,"1,00,000/-

4,"Funeral and obsequies expenses and transportation of dead body, etc.","25,000/-

,TOTAL,"32,85,000/-

said finding?,,

(2) Whether compensation awarded by the Tribunal is exorbitant as contended by the appellant or it is just and reasonable?""",,

RE: POINT NO.(1):,,

As regards the mode and manner in which accident took place, it was the contention of the insurer that lorry had been parked on the side of",,

the mud road after switching on the parking lights. The fact remains that accident occurred at about 3.15 p.m. in a broad day light on 09.08.2013.,,

The driver or the owner of the lorry was not examined by the insurer. It is no doubt true that jurisdictional police have filed charge sheet against,,

rider of the motor cycle. Ex.P-8 - spot sketch would disclose that the accident in question had occurred on extreme left side of the road. Tribunal,,

while discussing the evidence on this aspect has opined as under:,,

The spot sketch produced at Ex.P.8 would show that the accident in question occurred on the extreme left side of the road. The spot mahazar -",,

Ex.P.3 shows that the accident in question has occurred on the tar road and the front and back tyres of the right side of the lorry were on the tar,,

road. It is also evident that the charge sheet was filed against the rider of the motorcycle bearing Reg.No.KA-19-Y- 7083. Considering all these,,

facts and having regard to the totality of the circumstances in which the accident had taken place, I am of the opinion that there was equal",,

negligence on the part of the deceased/rider of the motorcycle bearing Reg.No.KA-19-Y- 7083 and also the driver of lorry bearing Reg.No.KA-,,

31-5033. Hence, the petitioners have partly proved that the accident had taken place on account of the rash and negligent act of the driver of lorry",,

bearing Reg.No.KA-31-5033 and at the same time, it can be concluded that the rider of the motorcycle bearing Reg.No.KA- 19-Y-7083 has",,

also contributed equally to the accident, due to which he succumbed to the injuries.""",,

Claimants have examined P.W.3 who was said to be an eye witness to the accident in question. In fact, said witness has stated in his",,

examination-in-chief that he came to ATM located near Radha Nursing Home, Farangipete to withdraw the money after which he was returning",,

towards Farangipete junction and saw the accident which occurred due to the parked lorry having suddenly started moving without any signal. In,,

fact, he has stated in his cross examination that he was not even knowing the deceased and his family members and has also denied the suggestion",,

that accident in question occurred due to the negligence of rider of the motor cycle. Nothing worthwhile has been elicited in the cross examination,,

to disbelieve his testimony. In the absence of any other contra evidence being available and the insurer having failed to examine the owner or driver,,

of the lorry in question, we are of the considered view that finding recorded by the Tribunal holding that there has been negligence in equal",,

proportion on the part of driver of the lorry as well as rider of the motor cycle cannot be held as erroneous. In that view of the matter, contention",,

raised by learned Advocate appearing for appellant stands rejected and accordingly, point No.(1) is answered against appellant - insurer.",,

RE: POINT No.(2):,,

Insofar as contention with regard to, Tribunal having accepted the salary of the deceased at Rs.20,000/- per month being erroneous, when",,

examined in the background of the evidence that came to be tendered by the claimants before Tribunal, it would disclose that they have contended",,

and asserted that deceased was working as an Arabic teacher at Kizar Juma Masjid Committee, Delampady, Kasargod and have produced a",,

certificate issued by its Secretary certifying thereunder that deceased was working for the past seven years i.e., from 2006 to 2013 and his salary",,

was Rs.20,000/- per month which came to be marked as Ex.P-16. Secretary of said Masjid came to be examined as P.W.2 and he has reiterated",,

the contents of Ex.P-16. However, in his cross examination, he has stated that from the Masjid, Rs.10,000/- per month was being paid and",,

parents of the students were paying Rs.10,000/- per month. As rightly contended by Smt.Harini Shivanand, there is no pleading or evidence to the",,

said effect. However, the fact remains that deceased was being paid Rs.20,000/- per month. Even if the evidence of P.W.2 is to be partially",,

accepted, we are not inclined to disturb quantification of the compensation made by the Tribunal, inasmuch as, Tribunal has not added any amount",,

towards ''loss of future prospects'' to the income of deceased. It is also an undisputed fact that claimants being the parents, wife and son were",,

dependent on the income of the deceased. Thus, when four persons were dependent on the income of the deceased, it cannot be held that",,

deceased was not earning Rs.20,000/- per month that too, in the year 2013. Hence, contention raised by learned Advocate appearing for",,

appellant cannot be accepted and it stands rejected and accordingly, point No.(2) is answered against appellant - insurer.",,

For the reasons aforestated, we proceed to pass the following:",,

JUDGMENT,,

(1) Appeal is hereby dismissed.,,

(2) Judgment and award passed in MVC No.542/2015 dated 16.11.2016 by III Additional Motor Accident Claims Tribunal, Mangaluru,",,

Dakshina Kannada is hereby affirmed.,,

(3) Amount in deposit along with the original records is ordered to be transmitted to the jurisdictional Tribunal by the Registry forthwith.,,

(4) No order as to costs.,,

(5) Registry is directed to draw the award accordingly.,,