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2013 DIGILAW 1212 (KAR)

Reshma Ramesh Govekar v. Abdul N. Hansimarad

2013-10-24

B.MANOHAR

body2013
Judgment : 1. The claimants, being not satisfied with the quantum of compensation awarded by the II Additional MACT, Karwar by its impugned judgment and award dated 03.04.2010 in M.V.C. No.190/2008, filed this appeal seeking for enhancement of compensation and also fixing contributory negligence to an extent of 50%. 2. The case of the claimants is that the husband of the first appellant and father of appellant Nos.2 and 3, one Ramesh Nagesh Govekar, who was working as an Assistant Guard of Excise Department at Goa was proceeding in his motorcycle bearing registration No.GA-03/D-2412 from Guler to Xelpem on 19.02.2008 at about 07.00 p.m. At that time the rider of the motorcycle bearing registration No.GA-03/D-3421 came in a rash and negligent manner in the opposite direction from Xelpem to Guler and dashed against the motorcycle, which the deceased was riding. Due to the accident Ramesh Nagesh Govekar sustained fatal injuries and he was shifted to the Goa Medical Hospital, where he died. At the time of death, he was aged 57 years and 9 months. He was the sole bread earner of the family. Hence claimants sought for compensation of Rs.15,00,000/- from the insurer of the offending vehicle. 3. First respondent who is the owner of the offending motorcycle remained exparte. Second respondent- insurer appeared and filed written statement denying the averments and also contended that due to the rash and negligent riding of the deceased the accident has occurred. In the curve the deceased has lost control and dashed against the motorcycle of the first respondent. Hence the claimants are not entitled for any compensation. 4. In order to prove their case, the first claimant got examined herself as P.W.1 and got marked documents as Ex.P.1 to Ex.P.8. On behalf of the respondents nobody has been examined. However, a copy of the insurance policy is marked as Ex.R.1. 5. The Tribunal after appreciating the oral and documentary evidence adduced by the parties and taking into consideration the Police Report, copy of FIR, complaint, mahazar and the accident being head-on collision of the two 2-wheelers, found that there is contributory negligence on the part of the deceased for the cause of accident and held that in view of the contributory negligence on the part of the riders of both the motorcycles, the accident had occurred. The Tribunal taking into consideration the last drawn salary of the deceased following the procedure of split multiplier awarded a compensation of Rs.4,29,875/- and ordered to release 50% of the said amount. The claimants aggrieved by the order passed by the Tribunal deducting 50% towards contributory negligence and not awarding just compensation, filed this appeal. 6. Sri V.P. Kulkarni, learned Advocate appearing for the appellants contended that the judgment and award passed by the Tribunal deducting 50% of the compensation amount towards contributory negligence of the deceased is contrary to law. Only on the basis of the complaint given by the Police Constable stating that the rider of the motorcycle bearing registration No. GA-03/D-2412 was negligent in riding the motorcycle, fixed the contributory negligence of 50% which is contrary to law. Further, the Tribunal has not taken into consideration the multiplier in proper perspective and sought for enhancement of compensation. 7. On the other hand, Sri R.R. Mane, learned counsel appearing for respondent No.2-insurer argued in support of the judgment and award passed by the Tribunal and contended that the accident is between the two 2-wheelers in the road width of 4.5 meters and that the accident is a head-on-collision. The report of the Police clearly discloses that the rider of the motorcycle insured with the second respondent was riding on the correct side, whereas the deceased came from wrong side and dashed against the motorcycle insured with them. The Tribunal taking into consideration all these aspects of the matter, fixed liability of 50% with regard to contributory negligence and the compensation awarded is in accordance with law and sought for dismissal of the appeal. 8. I have carefully considered the arguments addressed by the parties and perused the judgment and award and the oral and documentary evidence. 9. It is not in dispute that Ramesh Nagesh Gaonkar died in the road traffic accident occurred on 19.02.2008 in view of the head-on-collision between two motorcycles. The Police have registered a case against the first respondent. It is also not in dispute that at the time of death of the deceased, he was working as a Assistant Excise Guard of the Excise Department and getting a salary of Rs.8,775/-p.m., he was aged about 57 years 9 months as on the date of accident. The Police have registered a case against the first respondent. It is also not in dispute that at the time of death of the deceased, he was working as a Assistant Excise Guard of the Excise Department and getting a salary of Rs.8,775/-p.m., he was aged about 57 years 9 months as on the date of accident. The record clearly discloses that due to the head-on-collision between the two motorcycles, the accident has occurred, the width of the road is 4.5 meters apart from two-meter mud road. There was sufficient space for movement of the two motorcycles, due to the negligent riding of the motorcycles the accident has occurred. There is no eyewitness to the said accident. On the basis of the Police record the Tribunal came to the conclusion that, in view of the negligence on the part of both the riders the accident has occurred and the said Ramesh Nagesh Gaonkar died in the accident. The Tribunal taking into consideration all these aspects of the matter held that in view of the contributory negligence of both the motorcycles the accident has occurred and fastened contributory negligence to an extent of 50:50. I find no infirmity in the said finding. 10. With regard to the quantum of compensation is concerned, assessment of the compensation is not in accordance with law. Admittedly, the deceased was getting salary of Rs.8,775/-p.m., out of which 1/3rd is to be deducted towards personal expenses and Rs.200/- to be deducted towards professional tax, which works out to a sum of Rs.5,717/- p.m. and the same has to be treated as loss of dependency. The deceased was aged 57 years and 9 months as on the date of accident. In view of the Judgment of the Hon'ble Supreme Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation (2009) 6 Supreme Court Cases 121 and K.R. Madhusudhan and Others Vs. Administrative Officer and another ( 2011 ACJ 143 ) the appropriate multiplier to be applied is 9. Accordingly, a sum of Rs.6,17,436/- is the loss of dependency. The claimants are entitled for Rs.45,000/-under conventional heads. In all, the claimants are entitled to a sum of Rs.6,62,436/-as against a sum of Rs.4,29,875/- awarded by the Tribunal. Administrative Officer and another ( 2011 ACJ 143 ) the appropriate multiplier to be applied is 9. Accordingly, a sum of Rs.6,17,436/- is the loss of dependency. The claimants are entitled for Rs.45,000/-under conventional heads. In all, the claimants are entitled to a sum of Rs.6,62,436/-as against a sum of Rs.4,29,875/- awarded by the Tribunal. If 50% of the same is deducted towards contributory negligence, the claimants, in all, would be entitled to a sum of Rs.3,31,218/-with interest at 6% p.a. from the date of petition till payment. Hence I pass the following: ORDER The appeal is allowed in part. The claimants are entitled for a compensation of Rs.3,31,218/- with interest at 6% p.a. from the date of petition till payment. Out of the total compensation amount, a sum of Rs.75,000/-each, with proportionate interest shall be deposited in the name appellants in fixed deposit in any nationalized bank for a period of five years and the first appellant is entitled to withdraw the periodical interest. The remaining amount with accrued interest shall be released in favour of the first appellant.