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2013 DIGILAW 1149 (KAR)

PARAWATI v. BASAVARAJ

2013-09-24

A.N.VENUGOPALA GOWDA, K.L.MANJUNATH

body2013
JUDGMENT K.L. MANJUNATH, J.-Appellants were the claimants in MVC No. 66/20 10, before the II Addl. MACT, Karwar. Claim petition was lodged by them claiming compensation on account of the death of one Pandurang Yanku Patgar, who died in a road traffic accident occurred on 17.3.2010. The 1st appellant is the widow, appellants 2 and 3 are the son and daughter of the deceased. 2. It is the specific case of the claimants that the deceased was a pillion rider in the scooter bearing No. GA-02/H-1021 and he was proceeding from Kumta towards Karwar on the night of 17.3.2010. On account of the rash and negligent driving of the lorry bearing No. KA-27/A-1376, which was also proceeding in the same direction behind the scooter, the driver of the said lorry made an attempt to overtake another vehicle, as a result of which he lost control over the lorry and dashed to the scooter as a result of which the rider as well as the pillion rider of the scooter succumbed to the injuries. FIR was lodged on the early morning at 8.00 a.m. and the same was registered against the driver of the lorry. Charge sheet was filed against the driver of the lorry. 3. According to the claimants, the deceased was a businessman getting an income of Rs. 6,00,000/- p.a. 4. The owner of the lorry did not contest the case. The insurance company filed the written statement admitting the liability, however denied the manner in which the accident occurred and so also the income of the deceased. 5. The Tribunal framed the following issues for its consideration. Issues: (1) Whether the petitioners do prove that the deceased Pandurang Yanku Patgar being the pillion rider of scooter bearing No. GA-02/H-1021 was proceeding towards Karwar on the public road which runs between Karwar and Honavar, on 17.3.2010 at about 11.00 p.m. and while so proceeding at the place called Binaga, the said scooter had met with an accident on account of rash and negligent driving of lorry bearing No. KA-27/A-1376 driven by its driver and as a result of the said accident both rider and pillion rider of the said scooter had sustained injuries and then had succumbed to the same at the spot? (2) Whether the petitioners prove that they are the dependents on the income of Pandurang Yanku Patgarwho was earning a sum of Rs. (2) Whether the petitioners prove that they are the dependents on the income of Pandurang Yanku Patgarwho was earning a sum of Rs. 5,00,000/- to rupees 7,00,000/- per annum from his alleged business of prawns cultivation and that on account of the said death of Pandurang Yanku Patgar the petitioners are entitled to seek maintenance as prayed in the petition? (3) Whether the 3rd respondent-insurance company proves that the scooter bearing No. GA-01/H-1021 was not covered with insurance in respect of pillion rider and that the rider of the said scooter was not having proper D.L. so as to ride the same at the relevant time and that the accident was not at all caused due to any negligent act of the rider of scooter and therefore the 3rd respondent insurance company is not liable to pay any compensation? (4) Whether the second respondent insurance company proves that the driver of motor lorry bearing Reg. No. KA-27/A-1376 was not negligent at the relevant time and that the said driver was not having proper D.L. so as to drive the said lorry in question and that the insured of the said lorry had violated the terms and conditions of the policy issued by the second respondent insurance company and therefore the second respondent is not liable to pay any compensation as sought for? (5) Whether the petitioners are entitled to seek compensation? If so, how much and who shall have to pay the same? (6) What order or award? 6. In order to prove their respective contentions, on behalf of the claimants, two witnesses were examined as PWs. 1 and 2 and the claimants relied upon Exs.P.1 to P.20. An officer of the insurance company was examined as RW.1 and relied upon Exs.R.1 to R.3. The trial Court came to the conclusion that the accident did not occur on account of the rash and negligent driving by the driver of the lorry and it was due to the rash and negligent driving of the rider of the scooter. In regard to the compensation payable to the claimants, the Tribunal considering the loss of dependency at Rs. 7,500/- per month, by applying the multiplier of 13, assessed the same at Rs. 11,70,000/-. Under the conventional head, a sum of Rs. 20,000/- has been awarded, in all Rs. 11,90,000/-. In regard to the compensation payable to the claimants, the Tribunal considering the loss of dependency at Rs. 7,500/- per month, by applying the multiplier of 13, assessed the same at Rs. 11,70,000/-. Under the conventional head, a sum of Rs. 20,000/- has been awarded, in all Rs. 11,90,000/-. The claim petition is dismissed on the ground that the accident occurred due to the rash and negligent driving of the rider of the scooter and that the lorry was not involved in the accident. Aggrieved by the same, the present appeal is filed. 7. We have heard the counsel for the parties. 8. The main contention of the appellants counsel is that the trial Court has committed an error in holding that lorry did not involve in the accident though it is not the case of the owner of the lorry or of the insurance company. According to him, the Court on its own without there being any issue and evidence, erroneously has held that the involvement of the lorry is doubtful. According to the appellants, they being widow, minor children and aged mother of the deceased have produced Ex.P.1 FIR lodged against the driver of the lorry in question. Charge sheet is filed against the driver of the lorry. The lorry driver was the best witness to the incident did not step into the witness box. No reason has been assigned by the owner or the insurance company of the lorry for not examining the driver of the lorry, since the accident has taken place in the night of 17.3.2010 at 11.00 p.m. and that there were no eye witnesses except the driver of the lorry, since the rider and the pillion rider of the scooter succumbed to the injuries on the spot. 9. He further submits that Ex.P.6 is the spot panchanama, which is not disputed by the insurance company or the owner of the lorry. When spot panchanama was prepared, the lorry was on the spot. Lorry has been released from the Court later in favour of the owner of the vehicle. On perusal of the spot panchanama it is clear, that lorry was parked adjoining the naval wall which discloses that the lorry was taken to the extreme left side. When spot panchanama was prepared, the lorry was on the spot. Lorry has been released from the Court later in favour of the owner of the vehicle. On perusal of the spot panchanama it is clear, that lorry was parked adjoining the naval wall which discloses that the lorry was taken to the extreme left side. When the scooter as well as the lorry were proceeding in the same direction, if the lorry was following the scooter in the same direction, it was for the lorry driver to explain what made him to take the lorry to the extreme left side next to the naval wall and causing damage to the wall constructed by the Navy. The Tribunal without considering that there was no pleading and evidence to the effect that the lorry was not involved, on a wrong footing proceeded with the matter and dismissed the petition. He further submits that the compensation awarded under the conventional heads in a sum of Rs. 20,000/- is on lower side. In the circumstances he requests the Court to allow the appeal. 10. Per contra, the learned counsel for the insurance company contends that the Tribunal is justified in dismissing the claim petition, since the claimants have failed to examine any eye witnesses to show the manner in which accident occurred. He further submits that when no eye witness has been examined and when both the vehicles were proceeding in the same direction, when the driver of the lorry has been acquitted by the criminal Court, the finding of the Tribunal is just and proper and does not call for any interference. 11. Having heard the counsel for the parties we have to consider the following points in this appeal. (i) Whether the finding of the Tribunal that the claimants failed to prove the involvement of lorry bearing No. KA-37/A-1376 and dismissal of the claim petition on the said ground is just and proper? (ii) Whether the compensation assessed by the Tribunal requires to be enhanced and whether the claimants are entitled to the compensation? 12. So far as the first point is concerned, the accident is not disputed by both the parties. The accident is admitted by the insurance company as well as the owner of the lorry. The FIR is lodged against the driver of the lorry. Spot panchanama discloses that the lorry was found in the place of accident. 12. So far as the first point is concerned, the accident is not disputed by both the parties. The accident is admitted by the insurance company as well as the owner of the lorry. The FIR is lodged against the driver of the lorry. Spot panchanama discloses that the lorry was found in the place of accident. The accident has taken place at about 11.00 p.m. in the night on 17.3.2010 during which time there could not be any eye witnesses for the claimants to examine. In our view, the sole eye witness is the driver of the lorry who was the best person to explain the manner in which the accident occurred. 13. When the charge sheet is filed against the driver of the lorry, when he has not been examined before the Tribunal by the insurance company or by the owner of the vehicle, and to show that a finding has been given by the criminal Court to show that the prosecution failed to prove the involvement of the lorry in the accident, the judgment of the criminal Court has not been produced before the Tribunal. Therefore we are of the view that the Tribunal has traversed beyond the scope of the petition. What is required to be considered in a claim petition is whether there is negligence on the part of the driver of the offending vehicle or not and the accident was caused due to the negligence of the lorry driver. 14. In the peculiar circumstances of this case if the driver of the lorry has not stepped into the witness box, an adverse inference was required to be drawn by the Tribunal against the driver of the lorry. Without doing so on wrong assumption and presumption the claim petition is dismissed and such finding requires to be reversed by us. Accordingly, we answer point No. 1. 15. So far as second point is concerned, the learned counsel appearing for the appellants submit that the compensation assessed under the conventional heads is on lower sided. In all, Rs. 20,000/- has been assessed by the Tribunal towards loss of estate, loss of consortium, transportation of dead body and funeral expenses. 16. Accordingly, we answer point No. 1. 15. So far as second point is concerned, the learned counsel appearing for the appellants submit that the compensation assessed under the conventional heads is on lower sided. In all, Rs. 20,000/- has been assessed by the Tribunal towards loss of estate, loss of consortium, transportation of dead body and funeral expenses. 16. In view of the judgment of the Hon'ble Supreme Court in Rajesh and others vs. Rajbir Singh and others, considering the age of the widow and the amount spent towards transportation of dead body and funeral expenses, in addition to Rs. 20,000/- assessed by the Tribunal, we are inclined to award a sum of Rs. 1,00,000/-, since the age of the widow on the date of the accident was 40 years. Accordingly, we answer point No. 2. 17. In the result, the appeal is allowed. The judgment and award of the Tribunal is set aside holding that the appellants/claimants are entitled for a total compensation of Rs. 12,90,000/- with interest at 6% p.a. from the date of petition till the date of payment, fixing the liability on the respondent No. 2 who is the insurance company of the 1st respondent lorry. 18. Out of the total compensation awarded, a sum of Rs. 6,00,000/- with accrued interest thereon shall be deposited in any nationalized bank in the name of the 1st appellant widow of the deceased for a period of five years and she is entitled to withdraw the periodical interest. A sum of Rs. 2,50,000/- with interest accrued thereon shall be deposited in any nationalized bank in the name of the 2nd appellant for a period of five years. The 1st appellant, the mother of the 2nd appellant is entitled to withdraw the periodical interest. We permit the 1st appellant to withdraw the amount even though the 2nd appellant has attained majority, since he is a student, as the mother has to take care interest of the son. A sum of Rs. 2,50,000/- shall be deposited in any nationalized bank in the name of the 3rd appellant for a period of five years and the 1st appellant mother is entitled to withdraw the periodical interest. Rest of the amount shall be released in favour of the 4th appellant mother of the deceased.