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Judgment
S. Abdul Nazeer, J.—These two appeals are directed against the judgment and award in MVC No. 1931/2010 dated 22.2.2011 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bangalore City. MFA No. 7881/2011 has been filed by the Oriental Insurance Company Ltd., the insurer of the offending lorry bearing registration No. TN 18A 1906 challenging the judgment and award impugned herein mainly on two grounds viz. the driver of the vehicle namely, Qualis bearing registration No. AP 12 3975 is solely responsible for the accident. It has further contended that the compensation awarded is excessive. The connected appeal MFA No. 5883/2012 has been filed by the claimants seeking enhancement of the compensation.
The 1st claimant is the wife of one Omprakash. 2nd and 3rd claimants are his minor children. 4th claimant is his mother. It is the case of the claimants that Omprakash was traveling in Qualis bearing registration No. AP 12 D 3975 along with his friends. The lorry bearing registration No. 18 A 1906 was moving on the same road and the driver of the lorry suddenly applied the brake. As a consequence, the driver of the Qualis lost control and dashed against lorry from behind. Due to the impact, the inmates of the Qualis sustained grievous injuries. Immediately, Ompraksh was shifted to the Govt. Hospital, Bagepalli and then to Columbia Asia Hospital, Bengaluru, However, he could not respond to the treatment and died in the hospital on the same day. They have further contended that claimant was working as a Junior Assistant in Govt. Junior College, Lepakshi, Andhra Pradesh and drawing a salary of Rs. 15,000/- per month. In all, they have claimed compensation of Rs. 15,00,000/-.
The respondent insurer has entered appearance and filed the written statement opposing the claim petition.
On the basis of the pleadings of the parties, the Tribunal has framed the following issues;
(1) Whether the petitioners prove that Omprakash died in the motor vehicle accident that occurred on 12.1.2010 at about 6 a.m. near T.B. Cross., Bagepalli Taluk, within the limits of Bagepalli Police Station, on account of rash & negligent driving of lorry bearing Regn. No. TN 18 A 1906 by its driver as alleged in the petition?
(2) Whether the petitioners are entitled for compensation? If so, from whom and to what extent?
(3) What order?
The 1st claimant got herself examined as PW-1. Documents Ex. P1 to P13 were marked in her evidence. The respondents have not let in any evidence. On appreciation of the materials on record, the Tribunal has held that the driver of the lorry is solely responsible for the accident. The Tribunal has totally awarded compensation of Rs. 8,10,000/- with interest at 6% p.a. from the date of petition till the date of depositing of the amount.
Sri S.V. Hegde Mulkund, learned counsel appearing for the insurer of the offending vehicle submits that the Tribunal is not right in holding that it was on account of the rash and negligent driving of the driver of the offending lorry, the accident had occurred. It is submitted that the lorry was driven by it driver slowly on the highway. The driver of the Qualis dashed the rear portion of the lorry which was proceeding in front of the Qualis. Therefore, the Tribunal ought to have held that driver of the Qualis is responsible for the accident. He has drawn by attention to Rules 13, 23 and 24 of the Road Regulations, 1989 and has also relied on the decision of the Full Bench of this Court in Shrimanti and Others Vs. Krishna Deva Madiwal and Others, . It is further argued that the Tribunal therefore ought to have held that the insurer of the vehicle is not liable to pay any compensation. At any rate, the Tribunal ought to have determined the contributory negligence of the driver of the Qualis also.
On the other hand, learned advocate appearing for the respondents claimants submits that the driver of the lorry is solely responsible for the accident. The complaint was filed against the driver of the lorry. After investigation, police have filed charge sheet against the driver of the lorry. It is further contended that the deceased was working as a Junior Assistant in Govt. Junior College, Lepakshi, Andhra Pradesh. He was drawing salary of Rs. 15,000/- per month. He was aged about 30 years. Therefore, the Tribunal ought to have taken his income at Rs. 15,000/- per month and accordingly awarded compensation after adding 50% of the income towards future prospects. In this connection, he has relied on the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . It is further contended that appropriate compensation should have been awarded by the Tribunal towards loss of consortium and loss of love and affection having regard to the decision of the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others, .
I have carefully considered the arguments made at the Bar and the materials placed on record.
There is no dispute as to the occurrence of the accident. Having regard to the contentions urged, the first question for consideration is whether the driver of the qualis is responsible for the accident.
The wife of the deceased was examined as PW 1. She has stated that driver of the lorry has suddenly applied the brake, which is the cause for the accident. She is not an eye witness to the incident. It is also not in dispute that Qualis has hit the rear portion of the lorry. A Full Bench of this Court in Shrimanti''s case (supra) after considering Rules 13, 23 and 24 of the Road Regulations, 1989 has held as under:
The driver of the bus did not according to Shekar Harigouda Patil, P.W. 2, give any signal before stopping the bus, as was expected of him in terms of the above regulation. This version coming from a witness who was seated in the last row, on the left of the bus, may sound unworthy of credence, but, since the driver of the bus did not appear to controvert that version and no other evidence to the contrary was adduced by the Corporation, one could accept as true the version of the witness. Reference may also be made to regulation 24 of the Regulations which forbids sudden application of brakes except when it is necessary to do so for safety reasons. The driver of the bus has not appeared to explain why it became necessary to suddenly stop the bus and in particular whether there was any safety reason for doing so. The bus driver was therefore on both counts guilty of negligence, resulting in accident. That is not, however, the end of the matter. The motorcyclist who was following the bus was in the very nature of things under an obligation to maintain a safe distance from the bus. That was all the more so in situations where the bus and the motorcyclist were both going at high speed. The motorcyclist ought to know as a reasonable and prudent person placed in his position that unless he maintained a safe distance from the bus commensurate with the speed at which the two are driving, he was taking a grave risk of crashing into the bus should the bus driver suddenly apply the brakes either out of necessity or even carelessly. The standard of care which motorcyclist was required to take in such a situation ought to be much higher to be determined by his ability to stop motor cycle without crashing into the bus should the contingency to do so arise. Demands of prudence apart one of the well recognized traffic rules applicable to vehicular traffic is that a vehicle at the rear ought to maintain a safe distance from the vehicle in front all the time keeping a margin for the possibility of the driver in front committing a mistake or an act of carelessness.
The Tribunal has not examined the case keeping in mind the principles laid down in the aforesaid decision of the Full Bench. I am of the view that the Tribunal has to reconsider the matter relating to negligence.
That brings me to the next question as to whether the quantum of compensation awarded to the claimants is adequate?
The contention of the learned counsel for the insurer is that the award of compensation is excessive. The contention of the learned counsel for the claimants is that the deceased was a Government servant and was earning Rs. 15,000/- per month. However, the Tribunal has taken his income at Rs. 5,000/- per month for the purpose of computation of loss of dependency. The Tribunal ought to have examined the case keeping in mind the principles laid down by the Apex Court in Sarla Verma''s case (supra) relating to the future prospects. The Tribunal should have also considered the contention of the claimants that they are entitled for award of compensation towards loss of love and affection and loss of consortium by keeping in mind the observations of the Apex Court in Rajesh''s case (supra). I am of the view that the matter requires reconsideration.
In the result, the appeals succeed and are accordingly allowed in part. The judgment and award dated 22.02.2011 passed in MVC No. 1931/2010 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City is hereby set aside. The matter is remitted back to the Tribunal for fresh disposal in accordance with law and in the light of the observations made above.
The parties are permitted to file suitable application before the Tribunal to implead appropriate parties, if they so desire. They are also permitted to lead further evidence. All the contentions on merit are kept open. The appellant/insurer of the vehicle is permitted to withdraw the amount in deposit in MFA No. 7881/2011. Registry is directed to send the records to the Tribunal forthwith. The Tribunal is directed to dispose of the matter as expeditiously as possible. No costs.