The Oriental Insurance Company Ltd. and Others vs Geeta and Others

Mohan M. Shantana Goudar, J.—1. Sri R.R. Mane, learned counsel takes notice in M.F.A. Cr. Ob. No. 865/2012 and M.F.A. Cr. Ob. No. 861/2012 for United India Insurance Co. Ltd. Sri S.K. Kayakamath, learned counsel takes notice for respondent No. 4-Oriental Insurance Co. Ltd. in M.F.A. Cr. Ob. No. 865/2012 and M.F.A. Cr. Ob. No. 861/2012. Though the appeals and the cross objections are listed for admission, they are taken up for disposal with the consent of counsels appearing for respective parties.

During the night intervening 5th May 2012 and 6th May 2012, deceased Sunil and his twin brother Anil were traveling in VRL bus bearing No. KA-25-A-854 from Gadag to Bangalore. During the very night when the bus reached near Adivala village of Hiriyur Taluk, a lorry bearing No. KA-01-A-5150 came from the opposite direction in a rash and negligent manner and collided with the VRL Bus. At the same time, another bus, i.e., Kamat bus bearing No. KA-01-FD-491 which was coming behind the VRL bus hit on the rear side of the VRL bus, since the VRL bus suddenly stopped due to the impact with the lorry. Because of this ghastly accident, the driver of VRL bus and three passengers travelling in the VRL bus died. Twin brothers Sunil and Anil are amongst the three unfortunate victims, who were travelling in the bus. It is also relevant to note that driver and cleaner of the lorry also expired in the very accident. All these people died on the spot. All the three vehicles were damaged to a greater extent.

The Tribunal having come to the conclusion that the driver of the lorry was solely responsible for the accident in question and awarded compensation of Rs. 9,95,000/- in favour of the claimants in M.V.C. No. 194/2002 (arising out of the death of Sunil) and a similar sum of Rs. 9,95,000/- is awarded in favour of the claimants in M.V.C. No. 195/2002 (arising out of the death of Anil). The liability in both the matters is fastened on the insurer of the lorry, viz., Oriental Insurance Co. Ltd.

The appeals are filed by Oriental insurance Co. Ltd., questioning awards made against it in M.V.C. No. 194/2002 and 195/2002. M.F.A. No. 22150/2009 is filed against the award made in M.V.C. No. 194/2002 whereas M.F.A. No. 22149/2009 is filed against the award passed in M.V.C. No. 195/2002. Cross objections are filed by the claimants praying for enhancement of compensation. M.F.A. Cr. Ob. No. 865/2012 is filed in M.F.A. No. 22150/2009 and M.F.A. Cr. Ob. No. 861/2012 is filed in M.F.A. No. 22149/2009. All the matters are heard together and decided by the common judgment.

There is no sketch of scene of offence prepared in Crime No. 198/2002 pertaining to the accident in question. However, the scene of panchanama is prepared and the same is marked at Ex. P. 2 in the motor vehicle case.

Sri G.N. Raichur, learned Advocate appearing on behalf of the Oriental Insurance Co. Ltd., the insurer of the lorry, has taken us through the material on record more particularly Ex. P. 2 and submits that the driver of the VRL bus and the driver of the lorry are responsible to an extent of 50% each in causing the accident in as much as the accident has occurred in the middle of the road and the front portions of both the vehicles are fully damaged. He further submits that the driver of both the vehicles as well as the cleaner of the lorry have expired due to the impact apart from three passengers travelling in the VRL bus. Thus, according to him, the liability ought to have been fixed at 50% as against the insurer of the lorry and remaining 50% ought to have been fixed on the insurer of the VRL bus.

Per contra, Sri Mane, learned Advocate appearing on behalf of the United India Insurance Co. Ltd., the insurer of the VRL bus argued in support of the judgment of the Court below contending that accident has occurred purely because of the mistake of the driver of the lorry and the driver of the bus was not at all responsible for causing the accident; the very fact that the lorry came to its wrong side and collided with the bus itself would clearly reveal that the driver of the lorry is solely responsible for causing the accident.

We have meticulously perused the scene of offence panchanama. The same reveals that the front left side wheel of the VRL bus was on the kachha road whereas the front right side wheel as well as rear wheels of the lorry were on the tar portion of the road. VRL bus was standing in East-West direction, i.e., on the correct direction, on the extreme left side of the road, whereas the offending lorry has turned standing on the South-North direction because of the impact of the accident. The accident has occurred on National Highway. The lorry seems to have come in its correct side, i.e., on the left side of the road whereas the lorry has come to its wrong side of the road and collided against the VRL bus. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the driver of the VRL bus also should have been more careful in driving the bus. Admittedly, about more than 6 feet place was available for the VRL bus to come on the kachha road. Left front side of the wheel must have come on the kachha portion of the road after the accident. We say so because the rear wheels of VRL bus were on the tar portion of the road. But the fact remains that the VRL bus was on the extreme left side of the road, i.e., its correct side whereas driver of the lorry took the lorry into the wrong side and consequently lorry collided with the bus.

Having regard to the totality of the facts and circumstances, we are of the opinion that the driver of the lorry shall be saddled with the liability to an extent of 80% for causing the accident whereas the driver of the VRL bus must be saddled with remaining 20%. Consequently the insurers of the respective vehicles will have to indemnify the claimants to the said extent.

Coming to the question of compensation awarded, we are of the opinion that the Tribunal is not justified in granting lesser compensation to the claimants. The deceased are twin brothers, they are the sons of P.W. 3, both were Engineering graduates. Instead of joining any salaried service they have chosen to do business in as much as their family seems to be a business family. Evidence of P.W. 3, i.e., the father of the deceased clearly reveals that he was a businessman and he was doing different types of business. However, the material on record makes it amply clear that both the deceased after completion of their studies in B.E. had nearly started finance corporation as well as jewellery business. They have produced Income Tax Returns. The Tribunal has assessed the income of each of the deceased at Rs. 7,500/-per month during the relevant, which appears to be on the lesser side. Even if the deceased were to join any service after completing B.E. Course they would have safely got a job of Rs. 12,000/- to Rs. 15,000/- during the relevant point of time. This Court has been assessing the income of B.E. graduates or B.E. students who have expired in the accident in 2006-2007 at Rs. 20,000/- per month. Having regard to the fact that the deceased were B.E. Graduates and having regard to the fact that they were doing business of jewellery as well as finance corporation, we are of the opinion that interest of justice would be met if we assess income of the each of the deceased at Rs. 12,000/- per month. Since the accident has occurred in the year 2002.

The deceased have left behind their respective wives and children and their legal representatives. The Tribunal has rightly deducted 1/3 towards personal expenditure of the deceased and has also rightly adopted 16 multiplier having regard to the age of the deceased. However, the tribunal is not justified in not taking into consideration the future prospects of the deceased while awarding the compensation. The deceased were young aged about 32 years at the time of their death, they were B.E. graduates, they were entrepreneurs and they were income tax assessees. Having regard to these facts, we are of the opinion that the Tribunal could have taken at least 30% towards future prospects of the deceased. In view of the same, we add 30% of their income under the head future prospects while quantifying the compensation. Based on these facts and figures, the claimants would be entitled to Rs. 19,96,800/- under the head loss of dependency in each appeal. In addition to the same, the claimants would be entitled to Rs. 50,000/- under the conventional heads. Thus, in all the claimants are entitled to a compensation of Rs. 20,46,800/- in each case.

Out of the total compensation, the insurer of the lorry, viz., Oriental Insurance Co. Ltd., is liable to satisfy the award to an extent of 80% and remaining 20% would be satisfied by the United India Insurance Co. Ltd., viz., the insurer of the VRL bus. It is needless to observe that the compensation amount already paid by the Oriental Insurance Co. Ltd., i.e., the insurer of the lorry, shall be taken note of and remaining amount of compensation needs to be paid by it.

Since Thotappa, one of the claimant has expired, the other claimants on record are entitled to the compensation of his share. Hence, there is no need to apportion any amount of compensation in favour of the said Thotappa in as much as the other claimants are the only legal representatives of the deceased Thotappa also.

The amount in deposit before this Court shall be transmitted to the Tribunal.

ORDER ON I.A. No. 1/2015

Heard.

The claimants in these matters are entitled to interest at the rate of 6% per annum on the enhanced compensation also.

With this clarification, I.A. No. 1/2015 in both the matters stand disposed of.