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2011 DIGILAW 512 (KAR)

Gulabi Shedty v. United Insurance Company Limited

2011-05-24

H.S.KEMPANNA, K.L.MANJUNATH

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Judgment :- Manjunath, J 1. The appellants who are the claimants in MVC No.946/2002 on the file of the Dist. Jude & Member, MACT, Udupi, have filed this appeal being not satisfied with the compensation awarded by the Tribunal by its order dated 19.11.2004. 2. We have heard the Counsel for the parties. 3. The claimants are the legal heirs of one Sudhakar Shetty who died in road traffic accident occurred on 17.3.1999 at about 10 P.M. near Ajekar on Ajekar-Karkal road. Two vehicles were involved in the accident viz. Regn.No.KA.20/J-5248, Motor Cycle driven by the deceased from Ajekar towards Karkala and another vehicle bearing Regn. No.K.A.19/NTE-5016/98, motor cycle driven by one Melwyn Lobo from Karkala towards Ajekar. In the accident Sudhakar Shetty died. Therefore, his wife and children lodged the claim petition. The claim petition was contested on the ground that the accident did not occur on account of the rash and negligent riding of the Motor Cycle by Melwyn Lobo, but on the other hand it was due to the rash and negligent riding of the Motor Cycle by Sudhakar Shetty. The Tribunal on considering the evidence let in by the parties held that the riders of both the Motor Cycles were responsible for causing the accident and it further held that on account of the contributory negligence of the deceased Sudhakar Shetty, the claimants are not entitled to full compensation awarded and therefore, 50% of the compensation awarded has been deducted. Being aggrieved, the legal representatives of Sudhakar Shetty are in appeal before this Court. 4. The only point to be considered by us this appeal is, ‘Whether the accident occurred on account of the contributory negligence of the riders of both the vehicles or not?’ 5. Ex.D1 is the sketch prepared by the Police immediately after the accident which shows the place of impact. It is on the left side of the road which proceeds from Karakala towards Ajekar. Admittedly Sudhakar Shetty was proceeding from Ajekar towards Karkala. Melwyn Lobo was coming from opposite direction i.e., from Karkala towards Ajekar. If that is so, it can be safely held that it was Lobo who was proceeding from Karkala towards Ajekar was completely on his right side and Sudhakar Shetty was on the left side and there was on space for Sudhakar Shetty to take his vehicle to the further left. If that is so, it can be safely held that it was Lobo who was proceeding from Karkala towards Ajekar was completely on his right side and Sudhakar Shetty was on the left side and there was on space for Sudhakar Shetty to take his vehicle to the further left. The Tribunal without considering the sketch has wrongly held that the deceased also contributed for the cause of the accident. In our view, the finding of the Tribunal is perverse and not passed on proper appreciation of the sketch produced as Ex.D1. Therefore, we are of the view that the finding of the Tribunal in respect of the contributory negligence has to be set-aside. Accordingly, we do so. 6. In the result, we pass the following: ORDER i) The appeal is allowed. ii) The compensation awarded by the Tribunal in a sum of Rs.5,40,700/-with interest at 6% p.a. from the date of the petition till realisation is hereby confirmed. iii) Deduction of 50% of the compensation on the ground of contributory negligence is hereby set-aside and the claimants are entitled to the full compensation, as determined by the Tribunal, without any deduction.