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2010 DIGILAW 1073 (KAR)

N. A. Hemavathi v. Supriya Chakravarthy

2010-10-06

H.S.KEMPANNA, N.K.PATIL

body2010
JUDGMENT N.K. Patil, J.— These four appeals arise out of the impugned common judgment and award dated 30.11.2006 passed in MVC No. 4823/2001 on the file of the IV Addl. Member. MACT, Bangalore (hereinafter referred to as the Tribunal for short). The Tribunal by its impugned judgment and award awarded a sum of Rs.24.60.000/-with interest at 6% p.a. on account of the death of the deceased Sri. Muralimohan in the road traffic accident, as against the claim of the claimants for Rs.1,02,00,000/-in MVC No. 4997/01 and Rs.80.00.000/- in MVC No. 4823/2001. The claimants i.e. the parents and wife of the deceased, claiming that the quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement have filed M.F.A. No. 4193/2007 & M.F.A. No. 3451/2007. 2. The brief facts of the case are as follows: The claimants being the wife of deceased and parents of the deceased have filed two separate claim petitions in MVC No. 4997/2001 and MVC No. 4823/2001 respectively on account of the death of the deceased late Sri. Muralimohan. On 10.10.2001. when the deceased was travelling on bike on 80 ft. road, 4TH cross Sanjaynagar due to the rash and negligent driving of the Suzuki Samurai No. KA-02-Q-5475. it clashed against the bike of the deceased. As a result, the deceased sustained severe injuries. He succumbed to the injuries on the way to the hospital. Be that as it may, the claimants contended that, the deceased was aged about 29 years, by occupation he was a Software Engineer, having a bright career in the said field, drawing salary of Rs.51,250/- p.m. But, unfortunately, on account of the severe injuries sustained in the road traffic accident, he succumbed to the injuries. Therefore, the claimants were constrained to file claim petitions seeking compensation against the insurer and the owner of the offending vehicle. The said matter had come up consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other relevant material on file and further taking into consideration his age. occupation, allowed the claim petitions in part awarding a sum of Rs.24,60,000/- with interest at 6% p.a. from the date of the petition till realisation in the ratio of 50:50 to each of the claimants (i.e. wife and parents) respectively i.e. 50% to the wife and 50% to the parents of the deceased. occupation, allowed the claim petitions in part awarding a sum of Rs.24,60,000/- with interest at 6% p.a. from the date of the petition till realisation in the ratio of 50:50 to each of the claimants (i.e. wife and parents) respectively i.e. 50% to the wife and 50% to the parents of the deceased. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimants have filed the appeals whereas, the insurer has also filed two appeals questioning the quantum of compensation awarded by the Tribunal to the claimants that it is on the higher side and fixing the contributory negligence only on the rider of the motor cycle is not justifiable and is liable to be modified accordingly. 3. Learned Counsel for the insurer, contended and submitted that, the Tribunal has committed grave error in not assessing the oral and documentary evidence carefully. To substantiate his contention, he took us through the Ex.P6-sketch Ex.P7-panehnama and submitted that it is crystal clear from the perusal of the same that, the accident occurred due to the negligence on the part, of riders of the respective bikes as the accident took place in the middle of the road and therefore, the Tribunal ought to have fixed the contributory negligence at 50% each on the riders of the bikes and determined the compensation towards loss of dependency and conventional heads. 4. In reply to the contention regarding the fixing of contributory negligence on the riders of both the vehicles, both the counsel appearing for the claimants submitted that, the Tribunal was justified in fixing the entire liability on the offending vehicle as the accident in question occurred due to the rash and negligent driving of the offending vehicle and therefore, the question of interfering with the same is not called for nor there is any substance in the contention of the counsel appearing for the insurer and therefore, they submitted that by modifying the judgment and award of the Tribunal, the compensation awarded may be enhanced. 5. After careful consideration of the submissions of the learned Counsel for the parties, the points that arise for consideration are: i) Whether the fixing of contributory negligence at 100% on the rider of the offending motorbike and not fixing any contributory negligence on the part of the deceased is just and proper? 5. After careful consideration of the submissions of the learned Counsel for the parties, the points that arise for consideration are: i) Whether the fixing of contributory negligence at 100% on the rider of the offending motorbike and not fixing any contributory negligence on the part of the deceased is just and proper? ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 6. Regarding point No. 1: The occurrence of the accident, injuries sustained, and the deceased having succumbed to the said injuries are not in dispute. It is crystal clear from the perusal of Exhibits P6 and Ex.P7 sketch and panchanama respectively that, the deceased was proceeding in his vehicle from west to east whereas, the offending rider was proceeding from east to west. When they reached near the end of junction near 4th cross connecting to 2nd stage of RMV road, the rider of the offending vehicle instead of proceeding straight has come to the off-side of the road and the deceased has also left his track to a little extent on the road resulting in the accident. Therefore, it establishes beyond reasonable doubt that there is contributory negligence on the part of the deceased as well as on the part of the rider of the offending vehicle having regard to the spot of the accident as seen from the sketch Ex.P6 and supported by the contents of the recitals of the panchanama Ex.P7. Therefore, holding that there is negligence on the part of the deceased also in causing the accident, we fix the contributory negligence at 30% on the part of the deceased and 70% on the part of the rider of the offending vehicle. Accordingly, we uphold the contention of the learned Counsel for the insurer in part and reject the contention of the counsel appearing for the claimants. 7. Regarding point No. 2. The occurrence of the accident and the resultant death of the deceased are not in dispute. Further, it is not in dispute that the deceased was a well qualified engineering graduate aged about 29 years as on the date of death, possessing excellent career in software line getting salary of Rs.51,250/- p.m and annually it comes to Rs.6,15,000/-and out of which if income tax and professional tax of Rs.1,26,780/- is deducted, the net income comes to Rs.4,88,220/- p.a. He was hale and healthy prior to the accident. The deceased was the sole bread winner in the family and his parents were fully dependent on him. Due to his untimely death they have lost their social and financial security and the only aspiration in life as the deceased was their only son. Further it. emerges from the records that. Unfortunately, the wife of the deceased and the deceased had earlier filed a divorce petition by mutual consent. The wife has stayed with the deceased hardly for one year or so and thereafter, unfortunately due to the misunderstanding between the deceased and the wife, they had been staying separately. Taking these relevant factors into consideration, if we deduct l/3rd (Rs.1,62,740/-) towards the personal expenses of the deceased from the annual income of the deceased, the net amount comes to Rs.3,25,480/-p.a. (Rs.4,88,220/-Rs.1,62,740/-). The deceased was aged about 29 years and the appropriate multiplier applicable is 17' as per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 and we re-determine the compensation payable towards loss of dependency at Rs.55,33,160/-(Rs.3,25,480/- x 17 multiplier). 8. Having regard to the facts of the case referred to above, we deem it fit to award Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss of estate, Rs.15,000/-(Rs.5,000/- x 3) towards loss of love and affection, Rs.10,000/- towards transportation of dead body and funeral expenses. In all the claimants are entitled to compensation of Rs.55,78,160/-. Out of which, if 30% is deducted towards contributory negligence, it comes to Rs.39,04,712/-, which is the net enhanced compensation. Accordingly, we modify the impugned judgment and award passed by the Tribunal by enhancing the compensation awarded by the Tribunal from Rs.24,60,000/- to Rs.39,04,712/-. The enhanced compensation comes to Rs.14,44,712/- with interest at 6% p.a. from the date of the petition till realisation. 9. Further, so far as the apportionment of compensation by the Tribunal in the ratio of 50:25:25 to wife, father and mother of deceased is concerned, it can be seen that the parents of the deceased are his real dependents rather than his wife since, the deceased and his wife had filed a divorce petition by mutual consent and the wife had hardly stayed with the deceased for one year alter marriage and this fact is not. disputed. disputed. The parents are deprived of their future hopes, social and financial security in life and have lost the love and affection of their son permanently on account of the untimely death of their son. Having regard to the peculiar and unfortunate facts and circumstances of the ease, we hereby set aside the apportionment made by the Tribunal and apportion the total compensation of Rs.39,04,712/- in the ratio of 85:30:35 in favour of wife, father and mother respectively. 10. For the foregoing reasons, the instant appeals filed by the claimants and the insurer are allowed in part. The impugned common judgment and award passed by the Tribunal dated 30.11.2006 in MVC Nos. 4997/01 and 4823/01 is hereby modified, awarding compensation of Rs.39,04.7 12/- as against Rs.24,60.000/-awarded by the Tribunal with interest at 6% p.a. from the date of the petition till realisation. Out of the said compensation, wife - claimant in MVC No. 4997/2001 is entitled to 35% i.e. Rs.13,66,650/-; lather - first claimant in MVC No. 4823/2001 is entitled to 30% i.e. Rs.11,71,414/- and mother - second claimant in MVC No. 4823/2001 is entitled to 35% i.e. Rs.13,66.648/- . 11. The insurer is directed to deposit the remaining compensation amount with interest within four weeks from the date of receipt of the copy of this judgment. 12. Out of the total compensation of Rs.25,38,062/-awarded to the parents, Rs.10,00,000/- each shall be invested in their individual names in fixed deposit in any Nationalised/Scheduled Bank for a period of 3 years renewable for a further period of 3 years and they are entitled to withdraw the interest accrued on it periodically. The remaining Rs.5,38,062/- with interest shall be released in their favour in equal proportion immediately on deposit: by the insurer. 13. Out of the compensation of Rs.13,66,650/- awarded in favour of the wife i.e. Appellant in MFA 3451/2001, Rs.10,00,000/- with proportionate interest shall be kept in her name. in fixed deposit in any Nationalised/Scheduled Bank for a period of 5 years, renewable for a further period of 5 years with liberty to withdraw the interest accrued on it periodically. The remaining Rs.3,66,650/- with interest shall be released in her favour immediately on deposit by the insurer. 14. The amount deposited by the insurer shall be transmitted to the jurisdictional Tribunal forthwith. 15. The office to draw the award accordingly.