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2013 DIGILAW 1337 (KAR)

Latha v. Ramesh

2013-11-26

N.K.PATIL, R.B.BUDIHAL

body2013
Judgment : N.K. Patil, J: 1.This appeal by the claimant is directed against the judgment and award dated 7th January 2011, passed in MVC No.3582/2008, by the XIII Additional Small Cause Judge & Member, Motor Accident Claims Tribunal, Bangalore (SCCH-15), (for short, ‘Tribunal’) for award of reasonable compensation, by setting aside the impugned judgment and award passed by Tribunal, dismissing the same. 2. The Tribunal, by its impugned judgment and award dated 7th January 2011, dismissed the claim petition filed by the claimant /wife of the deceased, on the ground that the accidents has occurred on account of the negligence and fault of the deceased. Being aggrieved by the dismissal of the claim petition, the claimant/appellant is before this Court, seeking reasonable compensation for the death of her husband, K.H. Nagaraj in the road traffic accident. 3. The facts in brief are that, the claimant is the wife of the deceased K.H. Nagaraj. She filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 8:30 A.M., on 24-08-2007, when the deceased K.H Nagaraj was riding Hero Honda Motor cycle bearing Registration No.KA-02/W-9263 on Bhadrappa Layout, near Hebbal ring road, to attend his duty at Kanteerava Studio, at that time, a vehicle bearing Registration No.KA-09/5864 was negligently parked on the wrong side of the road, without any signal obstructing the vehicular traffic and the oil and petrol from the parked vehicle was spilled on the road. Due to the same, the Hero Honda skid and the deceased fell down and sustained grievous injuries. Immediately, he was shifted to the Hospital, but unfortunately, he succumbed to the injuries sustained in the said road traffic accident. 4. It is the case of the appellant that, the deceased was aged about 32 years and working as a Cameraman, earning a sum of Rs.20,000/- per month and was hale and healthy prior to the accident and had a bring future. On account of the untimely and unnatural death of the deseased K.H Nagaraj, the claimant/Appellant has lost the life partner, love and affection, social and moral and therefore, she have to be compensated reasonably. 5. On account of the death of the deceased K.H. Nagaraj, the appellant filed the claim petition before the Tribunal, seeking compensation against the respondents. On account of the untimely and unnatural death of the deseased K.H Nagaraj, the claimant/Appellant has lost the life partner, love and affection, social and moral and therefore, she have to be compensated reasonably. 5. On account of the death of the deceased K.H. Nagaraj, the appellant filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 7th January, 2011.The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, dismissed the claim petition with costs. Being aggrieved by the dismissal of the claim petition filed by the appellant, the appellant has filed this appeal before this Court, seeking to set aside the impugned judgment and award passed by Tribunal and to award reasonable compensation for the death of her deceased husband, K.H.Nagaraj. 6. We have gone through the grounds urged in the memorandum of appeal and heard learned counsel appearing for appellant and learned counsel appearing for second Respondent/Insurer, for considerable length of time. 7. Shri. S. Srishaila, learned counsel appearing for appellant, at the outset vehemently submitted that, the Tribunal has committed a grave error and material irregularity, resulting in serious miscarriage of justice, in dismissing the claim petition filed by the appellant, on the basis of hyper technical grounds. To substantiate the said submission, he drew our specific attention to the documentary evidence at Ex.P2-complaint, Ex.P4-Panchayanama, Ex.P5-P.M Report, Ex.P6-Report of Sub-Inspector, Ex.P7-Imv report and Ex.P11-sketch and pointed out that the driver of the Tempo/Lorry bearing Registration No.KA-09/5864 had parked the vehicle on the wrong side negligently, without giving any signal, whatsoever, obstructing the vehicular traffic and that oil and petrol from the said vehicle was spilled on the road. Because of the same, the rider of Hero Honda, i.e. the deceased while riding the said vehicle skid and on account of the same, he fell down and sustained grieves injuries and thereafter succumbed to the same. Further, he submitted that the deceased was aged about 38 years at the time of accident and working as Cameraman in Kasturi TV Channel, drawing substantial sum and contributing the entire sum towards the family welfare and on account of his untimely death, the appellant has also lost the social and moral support of her life partner. Further, he submitted that the deceased was aged about 38 years at the time of accident and working as Cameraman in Kasturi TV Channel, drawing substantial sum and contributing the entire sum towards the family welfare and on account of his untimely death, the appellant has also lost the social and moral support of her life partner. Further, he submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, ought to have taken judicial note and allowed the claim petition filed by appellant and awarded reasonable compensation, by at least fixing some percentage of negligence on the part of the deceased rider of the Hero Honda Motor cycle as well as on the driver of the vehicle who had parked the vehicle on the wrong side. Dismissing the claim petition taking hyper technical grounds and fixing the entire negligence on the part of the deceased rider of Hero Honda Motorcycle cannot be sustained and the impugned judgment and award passed by Tribunal is liable to be set aside at the threshold. Further, he vehemently submitted that non production of credible documentary evidence to establish that the deceased was getting Rs.20, 000/-per month will not take away the legitimate entitlement of compensation by the appellant, on account of death of her husband in the road traffic accident that occurred at about 8:30 A.M. on 24-08-2007. The Tribunal, based on the relevant material including the age, avocation and the year of accident, ought to have assessed the reasonable income of the deceased and determined the compensation. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be set aside and the appeal be allowed, by awarding reasonable compensation towards lots of dependency as also under conventional heads, by fixing reasonable negligence both on the part of the deceased rider of the Hero Honda Motor cycle bearing Registration No.KA-02/W-9263 and the driver of the Tempo/Lorry bearing Registration No.KA09/5864. 8. 8. As against this, learned counsel appearing for second respondent/Insurer sought to justify the impugned judgment and award, dismissing the claim petition, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and relying upon various decisions of the Hon’ble Apex Court and this Court and that the Tribunal is justified in dismissing the claim petition on the ground that the accident has occurred on account of the negligence and fault of the deceased rider of the Hero Honda Motor cycle and that there is no fault or negligence on the part of the driver of the tempo/Lorry, who had parked the vehicle on the correct side as per the documentary evidence. Further he submitted that, except making oral statement that the Tempo was parked on the wrong side negligently, the appellant has not produced any credible documentary evidence in support of the said stand and therefore, interference in the impugned judgment and award passed by Tribunal, dismissing the claim petition is uncalled for. 9. After hearing learned counsel for the parties, and after careful perusal of the impugned judgment and award passed by the Tribunal, dismissing the claim petition, including the original records placed before us, the points that arise for our consideration in this appeal are, I) Whether the Tribunal is justified in dismissing the claim petition? II) Whether the claimant is entitled to award of compensation by fixing reasonable contributing negligence on the part of the deceased? Occurrence of accident and the resultant death of the deceased K.H. Nagaraj are not in dispute. It is also not in dispute that the claimant is none other than the wife of the deceased and the deceased was aged about 38 years and working as a Cameraman in Kasturi TV channel. It is further not disputed that the claimant, wife of deceased is also working in a private Company and is not entirely dependent on the income of the deceased to eek her livelihood. It is further not disputed that the claimant, wife of deceased is also working in a private Company and is not entirely dependent on the income of the deceased to eek her livelihood. [Re-Point I]: The Tribunal, after critical evaluation of the oral evidence of PWs 1 and 2 coupled with documentary evidence at Exs.P1 to P16, particularly, Ex.P2 –complaint, Ex.P3-report under Section 174 of CPC, Ex.P4, Panchanama, Ex.P6- Report of Sub Inspector and Ex.P7, IMV report observed that the said documents disclose that the accident has taken place due to negligence of the deceased rider of the Hero Honda Motor cycle himself. But as per the IMV report and other documents, the motor cycle has been extensively damaged and the Tempo/Lorry which was parked on the road was along damaged. The nature of damages caused to both the vehicles establishes beyond all reasonable doubt that there is equal negligence on the part of the deceased rider of Hero Honda Motor cycle bearing Registration No.KA-02/W-9263 as well as the driver of the Tempo/Lorry bearing Registration No.KA-09/5864, who had parked the vehicle without giving proper indication or signal. It is the significations to note here itself that, it has not come in the contents of the Mahazar or evidence that the driver of the Tempo/Lorry has entered the witness box and deposed that he had parked the vehicle by giving suitable indications as per the traffic Rules and regulations. On the other hand, it is and has been the specific case of the appellant that since the Tempo/Lorry was parked on the road without giving proper signal or indication and that oil and petrol had spilled on the road, the deceased while riding the Hero Honda Motor cycle skid in that area, fell down and sustained grieves injuries and succumbed to the same thereafter. We find some substances and force in the contention taken by the appellant. It can further be seen that nothing has been elicited by the Insurer in the cross examination of the appellant to prove otherwise. We find some substances and force in the contention taken by the appellant. It can further be seen that nothing has been elicited by the Insurer in the cross examination of the appellant to prove otherwise. This aspect of the matter ought to have been taken into consideration and after due appreciation of the oral and documentary evidence available on file, ought to have allowed the claim petition, by awarding reasonable compensation, by fixing reasonable negligence on the part of both the rider of the Hero Honda Motor cycle as well as the driver of the Temp/Lorry who had parked the vehicle on the road without giving proper signal or indication. Therefore, we can safely come to the conclusion that, there is equal negligence on the part of both the rider of motor cycle as well as the driver of Tempo/Lorry. Hence, we answer the point No. I] in the ‘Negative’ and hold that the accident occurred due to the negligence and fault of both the rider of the Hero Honda Motor cycle as well as the driver of the Tempo/Lorry and fix the negligence in the ratio of 50:50 in favour of them, to meet the ends of justice. Re-Point II]: So for as quantum of compensation is concerned, in view of answering the point No. I] in the ‘Negative’, as above, we answer point No. II] in the ‘Affirmative’ and hold that the appellant is entitled to reasonable compensation for the death of her husband/deceased rider of Hero Honda Motor cycle in the road traffic accident. It is stated that the deceased was earning not less that Rs.20, 00/- per month. But, to substantiate the same, the appellant has not produced any credible documentary evidence. The accident is of the year 2007 and the deceased is stated to have been working as Cameramen in Kasturi TV channel. But, it should be seen that the appellant, the wife of deceased is also stated to be employed in a Private Company and hence, not entirely dependent on the income of the deceased to eek her livelihood. Therefore, having regard to the age, avocation and also the year of accident, we assess the income of the deceased at Rs.5, 000/- per month, to meet the ends of justice. Therefore, having regard to the age, avocation and also the year of accident, we assess the income of the deceased at Rs.5, 000/- per month, to meet the ends of justice. Having regard to the facts and circumstances of the case and also the fact that the claimant is only one and also not entirely dependent, we deduct 50% towards personal expenses of the deceased, as per the decision of the Hon’ble Supreme Court in Sarla Verma’s Case ( 2009 ACJ 1298 ). According, If 50% (i.e. Rs.2, 500/-) is deducted from Rs.5, 000/- towards his personal expenses, the net income would be Rs.2, 500/- per month. The age of the deceased was 38 years and the proper multiplier applicable is ’15’. Thus, the compensation towards loss of dependence/loss of Estate would work out to Rs.4, 50,000/-(i.e. Rs.2, 500/-x 12 x’ 15’). 10. Further, having regard to the facts and circumstances of the case and as per the decision of the Apex Court in Sarla Verma’s case (supra), we award a sum of Rs.45, 000/- towards conventional heads such as loss of love and affection, loss of consortium and transportation and funeral expenses. The total compensation works out to Rs.4, 95, 000/- with 6% interest per annum, from the date of petition till the date of realization. 11. While answering point No. I] above, we have already fixed the negligence in the ratio of 50:50 on the part of the rider of the Hero Honda Motor cycle as well as the driver of the Tempo/Lorry. Therefore, If 50% contributory negligence is deducted from the total compensation of Rs. 4,95, 000/-, the compensation to which the appellant is entitled to, works out to Rs.2,47,500/- with interest at 6% per annum from the date of petition till the date of realization. 12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed. 4,95, 000/-, the compensation to which the appellant is entitled to, works out to Rs.2,47,500/- with interest at 6% per annum from the date of petition till the date of realization. 12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed. The impugned judgment and award dated 7th January 2011, passed in MVC No.3582/2008, by the XIII Additional Small Cause Judge & Member, Motor Accident Claims Tribunal, Bangalore (SCCH-15), is hereby set aside; The contributory negligence is fixed in the ratio of 50:50 on the part of the deceased rider of the Hero Honda Motor cycle bearing Registration No.KA-02/W-9263 and driver of Tempo/Lorry bearing Registration No.KA-09/5864; The appellant is held entitled for compensation of a sum of Rs.2,47,500/-, after deducting 50% towards contributory negligence on the part of the deceased rider of Hero Honda, with interest at 6% per annum, from the date of petition till the date of realization. The second Respondent/Insurance Company is directed to deposit a sum of Rs.2, 47,500/-, with interest thereon at 6% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment. Immediately on such deposit by the Insurance Company, a sum of Rs.2, 00,000/- with proportionate interest shall be invested in Fix Deposit in any Nationalized/Scheduled bank, for a period of ten years, renewable by ten years, with liberty reserved to her to withdraw the periodical interest; Remaining sum of Rs.47, 500/- with proportionate interest shall be realized in favour on the appellant, immediately. Office to draw award, accordingly.