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2009 DIGILAW 813 (KAR)

Bhaktaprahiad v. Nirwani

2009-10-28

ARAVIND KUMAR, K.L.MANJUNATH

body2009
Judgment :- 1. The appellants have filed this appeal challenging the legality and correctness of the dismissal of their claim petition by the MACT, Bijapur, dated 31.8.2006 passed in MVC.No.57/2001. 2. The appellants lodged the claim petition claiming compensation on account of the death of their only son by name Dr.Anand, who died on 7.11.2000 on account of his motorcycle hitting the stationed lorry on Bijapur-Solapur National Highway No.13 near Banjara Nagar Cross, Bijapur. According to them they are doctors. They are from Khandwa, Madhya Pradesh and having a nursing home known as “Mishra Hospital” and employed about 70 workers in the nursing home. Their only son Dr.Anand was studying in B.L.D.E. Medical College Hospital, Bijapur and was aged 23 years and was about to compete his housemanship and they were eagerly waiting to receive their son as a Doctor to assist them in their hospital at Khandwa. On 7.11.2000, the deceased Anand was riding the motorcycle bearing registration No.KA-28/3948 and one of his collegemate Jonah was his pillion rider. When they were near Banjara Nagar Cross, Bijapur on N.H.13 on account of the negligence of the driver of the Truck bearing No.KA-23/3607 in parking on the middle of the road without switch on the parking lights, the deceased Anand had to dash against the Truck, which resulted in his death. According to the claimants, the deceased could have earned Rs.2 Lakhs per month and the dead body was taken to their native place and they have spend huge sum for last rituals. On these grounds, the claim petition was lodged. 3. The claimants arrayed the Insurance Company of the truck and so also the Insurance Company of the motorcycle. The Insurance Company of the motorcycle took a stand that the petition filed against it is not maintainable as the policy had covered only third party risk. Therefore, the claim petition ought to be dismissed against the Insurance company of the motor cycle. 4. So far as the Insurance Company of the truck was concerned, it was contended that the accident occurred not on account of the negligence of the driver of the lorry, but, it is on account of the rash and negligent driving of the driver of the motorcycle. Therefore, there was no negligence in parking the lorry and requested the Court to dismiss the petition. 5. Therefore, there was no negligence in parking the lorry and requested the Court to dismiss the petition. 5. The trial Court based on the above pleadings formulated the following issues for its consideration:- “1. Whether petitioners prove that on 7.11.2000 when the deceased Dr.Anand Mishra was coming on the motorcycle bearing No.KA-28/J-3948 from Solapur side to Bijapur B.L.D.E. Hospital along with pillion rider at about 2.30 A.M. near Banjara Nagar cross on Solapur-Bijapur Road, lorry bearing No.KA-23/3607 was parked on the road in a danger manner without lighting the indicator light and signaling device and due to that the motorcycle came in contact with rear side of the lorry and due to the accident, Dr.Anand Mishra sustained injuries and died at the spot? 2. Whether petitioners prove that they are the legal representatives of the deceased? 3. Whether petitioners prove that they are entitled to compensation, if so, how much and from whom? 4. What order?” In order to prove their respective contentions, the first claimant Dr.Bhaktaprahlad was got examined as P.W.1. Through him, Exs.P1 to P8 were marked. On behalf of the respondent no evidence was let it. The trial Court after considering the evidence let in by the parties dismissed the claim petition on the ground that the accident has taken place at about 2.00 A.M. in the early morning and the trial Court presumed that at that point of time, the deceased and the pillion rider being youngsters might have dashed against the parked truck under the influence of alcohol and therefore, held that the claimants are not entitled to claim the compensation. However, without appreciating the evidence has come to the conclusion that there was negligence on the part of the driver of the truck in parking the same without switch on the parking lights and assessed the negligence of the truck driver at 10%. He Tribunal having assessed the negligence of the driver of the lorry at 10%, did not award any compensation to the appellants on the ground that the appellants are well to do and were not depending upon the deceased. Accordingly, the claim petition was dismissed. Accordingly, the claim petition was dismissed. Being aggrieved by the same, the present appeal is filed. 6. We have heard the learned counsel for the parties. 7. Accordingly, the claim petition was dismissed. Accordingly, the claim petition was dismissed. Being aggrieved by the same, the present appeal is filed. 6. We have heard the learned counsel for the parties. 7. Sri.Babu H.Metagudda, learned counsel for the appellants contends that the trial Court has committed a serious error in coming to the conclusion that the deceased was driving the vehicle under the influence of alcohol. According to him, the negligence was on the part of the driver of the truck in parking the vehicle on the middle of the highway. According to him, either the Insurance Company or the owner of the lorry had not raised the contention that the deceased had dashed against the parked vehicle under the influence of alcohol. Without considering what was not pleaded by the respondent and without considering the evidence let in by the parties, the Tribunal on its own ha come to the conclusion that the deceased dashed against the parked truck by consuming alcohol. Therefore, the said finding has to be set aside. He further contends that the Tribunal did not consider Section 122 of the Motor Vehicles Act, 1988. According to him, a driver of the vehicle was required to follow certain rules while parking the vehicle on the road. The violation of Section 122 by the driver of the truck has resulted in causing the accident as the deceased could not see the parked truck on the middle of the road. He has also relied upon Rule 102of the Central Motor Vehicles Rules, 1989. Relying upon Section 122 and Rules 102 of the Motor Vehicles Rules and also Rule 109, he represented the Court to reconsider the case in its entirety. 8. Per contra, the learned counsel for the Insurance Company contends that the complaint lodged by the Sub-Inspector of Police, who has witnessed the accident discloses that the accident occurred on account of rash and negligent driving of the vehicle. Therefore, there was no negligence on the part of the driver of the truck in parking the vehicle. 8. Per contra, the learned counsel for the Insurance Company contends that the complaint lodged by the Sub-Inspector of Police, who has witnessed the accident discloses that the accident occurred on account of rash and negligent driving of the vehicle. Therefore, there was no negligence on the part of the driver of the truck in parking the vehicle. In the alternative, he contends that even if the Court comes to the conclusion that there is failure on the part of the driver of the vehicle in not following the traffic rules, at best, the negligence of the driver of the truck can be taken as contributory negligence and the same has to be assessed at 50% since the rider was required to follow the traffic rules and regulations and that no evidence is let in to show that portion of the lorry had been parked on the asphalted portion. According to him there was no difficulty for the motorcycle rider to drive the vehicle on the rest of the portion of the road. Therefore, he requests this Court to hold that there is contributory negligence. He hold that there is contributory negligence. He alternatively contends that since the appellants are well to do persons and that they were not dependent on the deceased for their livelihood, the appellants are not entitled for compensation. In the circumstances, he requests the Court to dismiss the appeal. 9. Having heard the learned counsel for the parties, this Court has to consider the following points:- “(1) Whether the accident occurred on account of the negligence on the part of the driver of the lorry in not following the provisions of Motor Vehicles Act and Rules? .(2) Whether the appellants are entitled for compensation? .(3) If so, how much and from whom? .(4) What order?” So far as the first point is concerned except the evidence of appellant No.1, there is no other evidence available on record. In other words, the driver of the lorry has not been examined by the Insurance Company to show that he had parked the vehicle by following the motor vehicle Rules. The FIR had been lodged in this case by the police, who have witnessed the accident and the same is marked as Ex.P2, which discloses that truck had been parked without any indication and parking lights were not on. The FIR had been lodged in this case by the police, who have witnessed the accident and the same is marked as Ex.P2, which discloses that truck had been parked without any indication and parking lights were not on. Ex.P3 is the spot panchanama, which discloses that the front and rare wheel of the left side of the truck were parked on the Kachcha portion and the right side front and rare wheels were on the asphalted portion of the road. From looking into Exs.P2 and P3, it is clear that the truck was parked without switching on the parking light and the lorry was stationed on the portion of the asphalted portion of the road. There was no difficulty for the Insurance Company to examine the driver of the truck to prove that he was negligent is parking the truck. The contention of the appellants is that the truck was parked without switching on the parking lights and the truck was parked actually on the asphalted portion of the road. The non-examination of the driver of the truck is fatal to the case of the Insurance Company and adverse inference has to be drawn against the Insurance Company. 10. Now we have to examine whether the driver of the lorry while parking the vehicle was required to follow the traffic rules. 11. Section 122 of the Motor Vehicles Act, 1988 reads as hereunder:- “Leaving vehicle in dangerous position:-No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. Rules 102 of the Central Motor Vehicles Rules, 1989 reads as hereunder:- 102. Signalling devices, direction indicators and stop lights, (1) The signal to turn to the right or to the left shall be given by electrically operated direction indicator lamps on all motor vehicles including construction equipment vehicles. Rules 102 of the Central Motor Vehicles Rules, 1989 reads as hereunder:- 102. Signalling devices, direction indicators and stop lights, (1) The signal to turn to the right or to the left shall be given by electrically operated direction indicator lamps on all motor vehicles including construction equipment vehicles. Every construction equipment vehicle shall be fitted and maintained so that the following conditions are not, namely:- .(i) The direction indicator lamps shall be of amber colour which are illuminated to indicate the intention to turn, by a light flashing at the rate of not less then 60 and not more than 120 flashes per minute. .(ii) The light emitted by the lamp when in operation shall be clearly visible from both front and rear of the vehicle. (iii) The minimum illuminated area of each direction indicator shall be 60 square centimeters; Provided that nothing contained in this sub-rule shall apply to L1 category of motor cycles: .(2) On all vehicles other than motor cycles, (the intention to stop the vehicle (other than construction equipment vehicle having hydrostatic brakes) shall be indicated by two electrical stop lamps which shall be red in colour and shall be fifteen one on each left and right hand sides at the rear of the vehicle. The stop lamps shall light up on the actuation of the service brake control. In the case of motor cycle, the intention to stop the vehicle shall be indicated by one stop lamp at the rear which shall light up on the actuation of the control operating the breaks on the rear wheels). .(3) One year from the date of commencement of the Central Motor Vehicles (Amendment) Rules, 1993, the stop lamp of every motorcycle shall be so designed and fitted that it will light up on actuation of any of the controls which actuate the brakes on any wheel.” Similarly, Rule 109 of the Central Motor Vehicles Rules, 1989 reads as hereunder:- “109. Parking light – (Every construction equipment vehicle and every motor vehicle other than motor cycles and three wheeled invalid carriages shall be provided with one white or amber parking light on each side in the front. In addition to the front lights, two red parking lights one each on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road. In addition to the front lights, two red parking lights one each on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx* By a combined reading of Section 122 and Rules 102 and 109, it is clear that the front and rear parking lights shall remain lit even if the vehicle is kept stationary on the road. Admittedly, in the instant case, the driver of the lorry had not switched on the parking lights and it was stationed on the asphalted portion as could be seen from Exs.P2 and P3. Therefore, it is clear that there is negligence on the part of the driver of the truck in parking the truck without switching on the parking lights to enable the passers by to know that such a vehicle ha been standing on the road. 12. We have also seen the post-mortem report of the deceased, which shall not disclose the vicera containing any symptom of alcohol. Therefore, the finding of the Tribunal that the accident might have caused by the deceased by consuming alcohol is incorrect. 13. When we have held that there is negligence on the part of the driver of the truck in parking the vehicle, we have to consider whether the truck was parked in such a way that it was not possible for the rider of the motorcycle to pass through the remaining portion of the road. If it is so, whether the rider of the motorcycle was also negligent in riding the motorcycle in a rash and negligent manner. 14. Ex.P2 discloses that the rider of the motorcycle was riding his motorcycle in a rash and negligent manner. When we see Ex.P3, the spot mahazar, it discloses that there was sufficient space on the remaining portion of the asphalted road to drive the motorcycle provide the rider of the motorcycle had not been rash and negligent. Therefore, we are of the view that the accident had been caused on account of the contributory negligence of the rider of the motorcycle and so also the driver of the truck in parking the same without following the motor vehicle’s Act and Rules, which we apportion the negligence equally. Accordingly, we answer Point No.1. 15. Therefore, we are of the view that the accident had been caused on account of the contributory negligence of the rider of the motorcycle and so also the driver of the truck in parking the same without following the motor vehicle’s Act and Rules, which we apportion the negligence equally. Accordingly, we answer Point No.1. 15. In so far as Issue Nos.2 and 3 are concerned, it is not in dispute that the deceased Anand was the only son of the appellants. The evidence of the appellant No.1 has not been challenged by the respondents. It has come in the evidence that both the appellants are doctors and they have an established nursing home under the name and style of “Mishra Hospital” at Khandwa, Madhya Pradesh. According to P.W.1 in his nursing home about 70 persons are employed and they were eagerly waiting to receive their only son who had passed his M.B.B.S. and was about to complete his housemanship. The qualification of the deceased Anand is not disputed by the Insurance Company. The records produced before the Tribunal would disclose that within a short period his housemanship would have been completed. If it is so, there was no difficulty for the deceased to join his parents and assist them in the nursing home, in which event, the income of the deceased on the date of the accident could not have been less than Rs.20,000/-per month. On the date of the accident as a houseman, he was getting the stipend of Rs.5,000/-per month. On completion and after joining his parents, his income cannot be assessed less than Rs.20,000/-per month. He had a bright future and prospects to undergo further studies, we can assess this based on the family background of the deceased. In such an event, his income cannot be assessed by us at this juncture. Therefore, we are of the view that the deceased atleast could have earned a sum of Rs.20,000/-immediately after completion of his housemanship. If it is so, considering that there is a contributory negligence in causing the accident, the loss of dependency has to be assessed at Rs.10,000/-, which works out to Rs.1,20,000/-per annum. Considering the age of the mother of the deceased, we have to apply the multiplier of 14 as she was aged about 43 years. Then the loss of dependency has to be assessed at Rs.16,80,000/-. Considering the age of the mother of the deceased, we have to apply the multiplier of 14 as she was aged about 43 years. Then the loss of dependency has to be assessed at Rs.16,80,000/-. It has come in the evidence that the dead body of the deceased was taken from Bijapur to Madhyapradesh and the appellants have spend Rs.30,000/-towards the transportation of the dead body, which we have to accept as true. Accordingly, we award a sum of Rs.30,000/-towards the transportation of the dead body. In addition to that we are inclined to award Rs.30,000/-under the head of loss to the estate, loss of love and affection and ceremonies. Thus, in all the appellants are entitled to Rs.17,40,000/-with interest at 6% per annum. 16. At this juncture, the learned counsel for the Insurance Company contends that since the appellants are doctors and were not dependent upon the deceased for their livelihood, the appellants are not entitled for compensation and that they are entitled for the loss of estate. To support his arguments, he has relied upon the judgment of the Supreme Court in (SMT. MANJURI BERA – VS-THE ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER). So far as the aforesaid judgment is concerned, we are of the view that the facts and circumstances of the said case is not applicable to the present case since the Supreme Court while considering the case of a married daughter has come to the conclusion that is such an event the parents are entitled only for loss of estate. But, so far as the present case is concerned, the deceased was the only son to the appellants. On account of the death of their only son their future is in dark. Admittedly, they are running a nursing home and their son would have taken charge of the nursing home within a few days. Therefore, the facts narrated in the decision relied upon by the learned counsel for the Insurance Company are entirely different and in the circumstances, we cannot accept the arguments advanced by the learned counsel appearing for the Insurance Company. 17. In the result, the appeal is allowed in part. Therefore, the facts narrated in the decision relied upon by the learned counsel for the Insurance Company are entirely different and in the circumstances, we cannot accept the arguments advanced by the learned counsel appearing for the Insurance Company. 17. In the result, the appeal is allowed in part. We set aside the judgment and award passed by the MACT, Bijapur, in MVC.No.57/01 dated 31.8.2006 and in modification of the same, we allow this appeal and award Rs.17,40,000/-as compensation together with interest at 6% per annum from the date of the petition till the date of realisation, which shall be paid by the second respondent-National Insurance Company, which is the insurer of the truck. Out of the compensation awarded, a sum of Rs.12 Lakhs with proportionate interest shall be invested in the name of the second appellant, who is the mother of the deceased for a period of five years and she is entitled to draw the periodical interest. The remaining amount shall be released to the appellants. The appeal against the respondents 3 and 4 is dismissed.