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Judgment
B.S. Indrakala, J.—Both these appeals are preferred against the Judgment and Award dated 24-12-2008 passed in MVC No. 29/2007 on the file of Civil Judge (Sr. Dn.), Challakere. It is the case of the claimants that they are the legal representatives of the deceased i.e., wives, son and mother of one Somashekhar and the said Somashekhar was traveling on 17-12-2006 at about 6.00 a.m. in Mahadevi bus bearing Reg. No. KA-16/A-4131 at Hosuru village for reaching Challakere for his mason work; when the said bus was at 3/4 km. away from Chitranayakanahally road, the driver of the bus drove the same in a rash manner and applied the brake all of a sudden, consequent of which Somashekara who was seated near the rear door of the bus was thrown out of the bus and sustained grievous injuries to his head and right femur; he was treated as an inpatient from 17-12-06 to 20-12-2006; during such treatment he was operated upon for the injuries sustained; the claimants spent more than Rs. 50,000/- for his treatment and they shifted the injured from one hospital to another in a hired car; he succumbed to the said injuries during such treatment. Further it is stated by the claimants that the deceased Somashekhar was working as a mason at the time of the accident and on account of his death the claimants not only suffered shock and mental agony and also financial loss and therefore they sought awarding of compensation.
In the statement of objections filed by the Insurer, while denying the cause of accident, the age and income of the deceased and also the expenses incurred while the injured was under treatment, it is specifically pleaded that the liability of the insurer if any, is subject to the terms and conditions of the policy. Further, it is contended that the victim had fallen from the top of the bus and thus there is violation of Sec. 123(2) of the M.V. Act and hence there is contributory negligence on the part of the deceased himself and as such 50% of the award amount has to be deducted for his own negligence.
To prove the case on behalf of the claimants, claimant No. 1 was examined as P.W. 1 and one of the witnesses to the incident was examined as P.W. 2 and Exs. P1 to P11 were got marked. On behalf of the respondents, an official of the Insurance company was examined as R.W. 1 and Exs. R1 and R2 were got marked.
On appreciating the evidence on record, the Tribunal awarded a sum of Rs. 4,50,000/- with interest at the rate of 6% p.a. in favour of claimants 1, 3 and 4.
Aggrieved by the said Judgment and award, the Insurer preferred MFA 1795/2009 while the claimants preferred MFA 4085/09.
It is contended by the Insurer that the wound certificate clearly discloses that the deceased was a roof top passenger; he alone was responsible for the accident; the compensation awarded is on the higher side and sought to set aside the award. The claimants contended that the amount awarded by the tribunal is inadequate and seeks enhancement of the same.
The learned counsel appearing for the claimants submitted that the tribunal has taken the income of the deceased at Rs. 3000/- p.m. which is on the lower side. Further he submitted that the multiplier of 16 adopted by the tribunal is also not proper. While considering the age and the monthly income of the deceased, the tribunal ought to have adopted the multiplier of 17. Further, he submitted that there is no contributory negligence on the part of the deceased and seeks enhancement of the amount awarded.
In view of such submissions, the points that arise for consideration are:
(1) Whether the impugned Judgment and Award dated 24-12-2008 passed in MVC No. 29/07 on the file of the Civil Judge (Sr. Dn.) Challakere is liable to be modified?
(2) What order?
The occurrence of the accident and the death of the victim on account of the injuries sustained by him in the accident are not in dispute. What is urged by the Insurer is that there is contributory negligence on the part of the injured, irrespective of whether he was traveling on the rooftop or inside the bus as he was negligent and on account of his own act, he was thrown out of the bus and as such, the contributory negligence at 50% will have to be fixed and deducted out of the compensation amount.
Though it is contended by the Insurance Company that the deceased was sitting on the top of the bus, the same cannot be accepted as the evidence of P.W. 1 and P.W. 2 and also the charge sheet filed against the driver of the bus clearly shows that the deceased was sitting on the rear seat of the bus and was thrown out of the bus when the driver applied brake all of a sudden. However, even by accepting the contents of the charge sheet that the injured was sitting inside the bus and when the driver applied the brake he was thrown out of the bus, still there is negligence on his part as the deceased failed to take necessary precaution particularly, when he sat on the last row of seat of the bus and near the door. Thus, as contended by the learned counsel for the Insurer, certain degree of contributory negligence has to be fixed and it is reasonable to fix the same at 15%.
With regard to the quantum of compensation awarded, the Tribunal in the absence of corroborative evidence has deemed it fit to fix the income of the deceased at Rs. 3000/- p.m. and out of the said amount has deducted 1/3rd towards his personal expenses, which is proper.
The tribunal has held that the second wife of the deceased cannot be considered as legally wedded wife and therefore, she is not entitled to claim compensation which is also proper.
With regard to the application of the multiplier, the tribunal while considering the age of the deceased as 30 years, has applied the multiplier as 16 which is not proper. In the light of the decision rendered in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the proper multiplier to be applied is 17 since the age of the deceased was 30 years at the time of the accident. Thus, the claimants are entitled to be compensated at Rs. 4,08,000/- (Rs. 3000 - 1000 = 2000 x 12 = 24,000 x 17).
The tribunal has deemed it fit to award a sum of Rs. 6000/- towards transportation charges, Rs. 10,000/- towards medical expenses, Rs. 10,000/- towards death and funeral functions, Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards love and affection to petitioners 3 and 4 and Rs. 20,000/- towards loss of estate and in all has awarded a sum of Rs. 66,000/- towards such incidental expenses and conventional heads which is proper. Thus the claimants are entitled to be compensated at Rs. 4,08,000 + 66,000 which comes to Rs. 4,74,000/-.
As already observed, the accident has occurred due to the contributory negligence on the part of the deceased himself. Therefore, 15% of the amount has to be deducted towards contributory negligence i.e., Rs. 71,000/-. If the said amount is deducted out of Rs. 4,74,000/-, the claimants are entitled for Rs. 4,03,000/-. Accordingly, the impugned Judgment and award is liable to be modified. Consequently, the appeal filed by the Insurer in MFA 1785/2009 is partly allowed awarding a compensation of Rs. 4,03,000/- with interest at 6% p.a. from the date of petition till realization as against Rs. 4,50,000/- awarded by the tribunal.
The appellant - Insurance Company shall deposit the entire amount so awarded within four weeks from the date of receipt of a copy of this order. The deposit if any, made in this appeal shall be transmitted to the jurisdictional tribunal forthwith.
On such deposit, as claimant No. 1 - the wife of the deceased is reported to dead as per memo filed on 6-1-2012 and as per the order dated 2-4-2012, the same shall be apportioned in favour of claimant Nos. 3 and 4. Out of the amount of Rs. 4,03,000/- so awarded, Rs. 3,03,000/- with proportionate interest is apportioned in favour of claimant No. 3 - the son of the deceased and Rs. 1,00,000/- with proportionate interest is apportioned in favour of claimant No. 4 - the mother of victim. The said amount so apportioned in favour of the son of the deceased shall be invested infixed deposit in any of the nationalized bank of the choice of claimant No. 2 for a period of 10 years or till he attains the age of majority whichever is later with liberty to his mother - appellant No. 2 to withdraw 50% of the amount that accrues on such deposit for the use of appellant No. 3. The balance of 50% of the interest shall be payable on maturity of the fixed deposit.
Out of the amount so apportioned in favour of the mother of the deceased viz., appellant No. 4, Rs. 50,000/- with proportionate interest shall be invested in fixed deposit in any of the nationalized bank of her choice for a period of 5 years with liberty to withdraw the periodical interest as and when it accrues. The balance of Rs. 50,000/- with proportionate interest shall be released in her favour for her immediate necessities.
The appeal filed by the appellants/claimants in MFA 4085/2009 is hereby dismissed.
Office to draw the award accordingly.