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2013 DIGILAW 849 (KAR)

New India Assurance Co. Ltd. v. Paary T. T. N

2013-07-25

B.MANOHAR, N.K.PATIL

body2013
JUDGMENT N.K. Patil, J.—These two appeals respectively by the Insurer and the Claimants are directed against the same judgment and award dated 5th January 2012, passed in MVC No. 6404/2008, by the XXII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal, Bangalore, (for short, 'Tribunal'). While the Insurer has filed the appeal on the ground that, the Tribunal is not justified in fixing the contributory negligence at only 20% on the deceased Nagaraju N., the rider of Motor Cycle bearing Registration No. AP-03/J-8198; the claimants have filed the appeal, seeking enhancement of compensation on the ground that the compensation of Rs. 14,04,000/- awarded by Tribunal is on the lower side and the contributory negligence fixed at 20% is liable to be set aside. 2. The facts of the case as stated in the claim petition are that, at about 6-45 P.M., on the ill-fated day, i.e. on 31-05-2008, when the deceased N. Nagaraju was proceeding on Motor Cycle bearing Registration No. AP-03/J-8198, along with his wife and son, aged about ten years, on Hosur-Bangalore Road, NH-7, near ICICI ATM, at that time, another Motor cycle bearing Registration No. KA-05/EW-1031 came at a high speed, in a rash and negligent manner and dashed against the Motor Cycle of the deceased N. Nagaraju. Due to the impact, the deceased as well as both the pillion riders fell on the ground and sustained injuries. Immediately, the deceased was shifted to Hosur Government Hospital and later treated as in-patient at St. John's Hospital, Bangalore, where he succumbed to the injuries on 21-06-2008 after nearly 22 days. 3. The claimants herein are none other than the wife, daughter and son of deceased N. Nagaraju in the road traffic accident. It is the case of the claimants that, deceased was the only earning member in the family and on account of his death, the family is in total financial distress and are left with no social and moral support and therefore, they have to be compensated reasonably, as the wife has to run the family single handedly and give education to the minor children all alone. 4. On account of the death of the deceased N. Nagaraju in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 4. On account of the death of the deceased N. Nagaraju in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 40,00,000/- against the owner and Insurer of the offending vehicle and the same was numbered as M.V.C. No. 6404/2008. The said claim petition had come up for consideration before the Tribunal on 5th January, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs. 14,04,000/-, with 6% interest per annum, after deducting 20% towards contributory negligence on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J 8198, from the date of petition till the date of deposit, excluding interest for the period from 12-02-2009 to 07-06-2010. Being aggrieved by the contributory negligence fixed on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198, at only 20%, the Insurer is in appeal before this Court, seeking to re-fix reasonable percentage of negligence on the part of deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198, at least in the ratio of 50:50, to meet the ends of justice, whereas the claimants are also in appeal before this Court, seeking enhancement of compensation and also to set aside the 20% contributory negligence fixed on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198. 5. We have heard Shri. R. Jai Prakash, learned counsel appearing for Insurer and Shri. Vishwanath Sabarad, learned counsel appearing for claimants, gone through the grounds urged in the memorandum of appeal carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us. 6. Shri. R. Jai Prakash, learned counsel appearing for Insurer vehemently submits that the Tribunal committed grave error and material irregularity, resulting in serious miscarriage of justice, in fixing contributory negligence in the ratio of 80:20, i.e. 80% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and only 20% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198, when in fact, the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198 contributed more to the occurrence of accident. To substantiate the same, he submitted that, admittedly, the deceased rider of motor cycle bearing Registration No. AP-03/J-8198 was riding the said vehicle in contravention of the terms and conditions of Insurance Policy and the relevant provision of the Motor Vehicles Act, in as much as the deceased rider was riding the said vehicle with two pillion riders, viz. the wife and his son. Thereby, the insured has violated the terms and conditions of Insurance Policy and therefore the Insurer is not liable to indemnify the award. He further submitted that the rider of the Motor Cycle bearing Registration No. AP-03/J-8198 with two pillion riders, came at a high speed, in a rash and negligent manner and dashed against the Motor Cycle bearing Registration No. KA-05/EW-1031 and therefore the rider of said Motor Cycle contributed more to the occurrence of accident. Further, he relied on the charge sheet filed against the deceased rider of the Motor Cycle and submitted that it is a conclusive proof, but the criminal proceedings came to be concluded as the deceased rider succumbed to the injuries. He further drew our attention to the contents of Mahazar and FIR and submitted that it proves beyond all reasonable doubt that, the deceased rider bearing Registration No. AP-03/J-8198 came at a high speed and dashed against the rider of Motor Cycle bearing Registration No. KA-05/EW-1031, on account of which the rider of the said motor cycle fell down and sustained injuries. Further, he submitted that the Tribunal ought to have considered the stand taken by the Insurer in its objections that, there is 100% negligence on the part of the deceased rider of motor cycle. Therefore, he submitted that the Tribunal has failed to take into consideration all these aspects and fixed the contributory negligence in the ratio of 80:20, i.e. 80% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and 20% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198. 7. To substantiate his case further, he relied upon the judgment of this Court reported in P.S. Somaiah and Another Vs. The Director, Bangalore Diary and Others, AIR 2003 Kant 258 and submitted that, the Division Bench, in an identical case, has held that overloading affects stability of the vehicle and accordingly, fixed contributory negligence in the ratio of 60:40. 7. To substantiate his case further, he relied upon the judgment of this Court reported in P.S. Somaiah and Another Vs. The Director, Bangalore Diary and Others, AIR 2003 Kant 258 and submitted that, the Division Bench, in an identical case, has held that overloading affects stability of the vehicle and accordingly, fixed contributory negligence in the ratio of 60:40. Therefore, the Tribunal is not justified in fixing the contributory negligence in the ratio of 80:20 and the same cannot be sustained and the impugned judgment and award passed by Tribunal is liable to be modified, by re-fixing the contributory negligence in the ratio of at least 50:50, to meet the ends of justice. 8. As against this, learned counsel appearing for claimants vehemently submitted that, the Tribunal, grossly erred in not adding 30% of the income towards future prospects of the deceased, as per the decision of the Apex Court in AIR 2009 SC 3104 , as the deceased N. Nagaraju was aged about 40 years and in secured job, i.e. working as Head Master in a Government School, drawing salary of Rs. 15,350/- per month, as per Ex. P6. Therefore, 30% of the income may be added and reasonable enhancement may be made towards loss of dependency, adopting proper multiplier and deducting 1/3rd towards the personal expenses of the deceased. 9. Regarding the contributory negligence fixed by the Tribunal in the ratio of 80:20 and contended by the learned counsel appearing for Insurer that the Insured has violated the terms and conditions of policy, he submits that, in usual practice, it is common that a small family with a small child, do travel in a two-wheeler with more than one pillion rider and practically, it is very common and therefore, much importance need not be given to it. However, he submits that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file and also considering the fact that charge sheet has been filed at the first instance on the rider of the other Motor cycle bearing Registration No. KA-05/EW-1031, and later on, another charge sheet has been filed against the deceased rider of the motor cycle, has rightly come to the conclusion that there is negligence on the part of the riders of both the Motor Cycles and rightly fixed contributory negligence in the ratio of 80:20, i.e. 80% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and 20% on the part of the deceased rider of Motor--, Cycle bearing Registration No. AP -03/J-8198. Hence, it does not call for interference. 10. After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these appeals are: I] Whether the Tribunal is justified in fixing the contributory negligence in the ratio of 80:20, i.e. 80% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and 20% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198? II] Whether the quantum of compensation awarded by Tribunal is just and reasonable? Re-Point I]: Occurrence of accident and the resultant death of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198 are not in dispute. It is also not in dispute that the claimants are none other than the wife and two minor children. It is further not in dispute that the deceased rider, N. Nagaraju was riding the Motor Cycle bearing Registration No. AP-03/J-8198, with two pillion riders, i.e. wife and son The riders of both the Motor cycles came in a rash and negligent manner and dashed against each other and due to the impact, both the riders fell down including the pillion riders, but unfortunately, the rider of Motor Cycle bearing Registration No. AP-03/J-8198 sustained grievous injuries and succumbed to the same after nearly 22 days of treatment at St. John's Hospital. 11. John's Hospital. 11. As rightly pointed out by the learned counsel appearing Insurer, Shri. R. Jai Prakash, the reasoning given by Tribunal for fixing 80% contributory negligence on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 cannot be sustained and is contrary to the documentary evidence available on file, for the reason that as per Ex. P22- Panchanama and Ex. P1 - FIR, police after due investigation, have also filed the charge sheet against the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198 and it is not disputed that it is a conclusive proof to show that he was also responsible for occurrence of accident. When these clinching material were available on file, the Tribunal ought to have fixed reasonable contributory negligence on the part of riders of both the Motor cycles. Further, as can be seen from the records, the riders of both the Motor cycles contributed to the accident and in fact, the deceased rider of the motor cycle was riding the said vehicle in contravention of the provisions of Section 128 of the Motor Vehicles Act, 1988, by carrying two pillion riders. Considering this aspect, charge sheet has been filed against the deceased rider of motor cycle. However, in the first instance, on the basis of the complaint given by the first claimant, and after due investigation, the police have filed the charge sheet against the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and registered a case in Crime No. 252/2008 for the offences punishable under Sections 279 and 337 of IPC and consequent to death of deceased rider, the concerned police have also invoked Section 304-A IPC. Thereafter, it can be seen that an abated charge sheet came to be filed against the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198 as per Ex. P25(a). Further, it is not disputed that the deceased rider of Motor Cycle was riding the Motor Cycle in contravention of the relevant provisions of the Motor Vehicles Act, 1988. Thereafter, it can be seen that an abated charge sheet came to be filed against the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198 as per Ex. P25(a). Further, it is not disputed that the deceased rider of Motor Cycle was riding the Motor Cycle in contravention of the relevant provisions of the Motor Vehicles Act, 1988. The relevant provision of Section 128 is extracted below: Sec. 128: Safety measures for drivers and pillion riders: (1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) xx xx xx xx xx xx (emphasis supplied) Admittedly, as per the aforesaid provision, the deceased rider of the Motor cycle has clearly violated the relevant provisions of the Motor Vehicles Act and in turn the terms and conditions of the policy. Therefore, having regard to the totality of the case on hand and after re-appreciation of the oral and documentary evidence available on file, we answer the point No. 1 in the 'Negative' and hold that the riders of both the motor cycles contributed to the occurrence of accident and fix the contributory negligence in the ratio of 60:40, i.e. 60% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and 40% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198, to safeguard the interest of both parties and to meet the ends of justice, as against the contributory negligence fixed by the Tribunal in the ratio of 80:20, i.e. 80% on the part of the rider of Motor Cycle bearing Registration No. KA-05/EW-1031 and 20% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198. Re-Point II]: So far as quantum of compensation awarded by Tribunal is concerned, occurrence of accident and the resultant death of deceased rider of Motor cycle bearing Registration No. AP-03/J-8198 are not in dispute. It is also not in dispute that the deceased N. Nagaraju was aged about 40 years as on the date of accident and working as a Head Master in the Government School, drawing gross salary of Rs. 15,350/- per month. It is also not in dispute that the deceased N. Nagaraju was aged about 40 years as on the date of accident and working as a Head Master in the Government School, drawing gross salary of Rs. 15,350/- per month. As rightly pointed out by the learned counsel appearing for claimants, 30% of the same is to be added to the total income towards future prospects of the deceased as per the law laid down in AIR 2009 SC 3104 . Accordingly, if 30% (i.e. Rs. 4,605/-) is added to the aforesaid salary of the deceased, the total income comes to Rs. 19,955/- per month and per annum it comes to Rs. 2,39,460/-. Out of this, professional tax of a sum of Rs. 2,400/- and approximate income tax of Rs. 9,000/- are deducted, the net annual income comes to Rs. 2,28,060/-. Out of this, since the number of dependents are three, 1/3rd is to be deducted towards the personal and living expenses of the deceased as per Sarla Verma's case (supra). If 1/3rd (i.e. Rs. 76,020/-) is deducted from it, the net income comes of Rs. 1,52,040/-. Further, as the deceased was aged about 40 years at the time of accident, the appropriate multiplier applicable is 15', in view of the aforesaid judgment. Thus, the compensation towards loss of dependency would work out to Rs. 22,80,600/- (i.e. Rs. 1,52,040/- x 15') as against Rs. 14,40,000/- awarded by Tribunal. 12. Further, so far as compensation awarded towards conventional heads, i.e. loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses is concerned., we are of the considered view that a sum of Rs. 60,000/- awarded under the conventional heads is on the higher side and as per the decision of the Apex Court in Sarla Verma's case (supra), we award a sum of Rs. 45,000/- under the conventional heads. 13. Further, a sum of Rs. 2,50,000/- awarded by Tribunal towards medical expenditure supported by bills is just and proper and we uphold the same and interference in the same is not called for, as the deceased rider of Motor cycle survived for a period of nearly 22 days before succumbing to the injuries sustained in the road traffic accident. Thus, the total compensation works out to Rs. 25,75,600/- as against Rs. 17,55,000/- awarded by Tribunal. 14. Thus, the total compensation works out to Rs. 25,75,600/- as against Rs. 17,55,000/- awarded by Tribunal. 14. As per the contributory negligence re-fixed by this Court as above, in the ratio of 60:40, the claimants are entitled to only 60% of the total compensation. Accordingly, 60% of Rs. 25,75,600/- works out to Rs. 15,45,360/- as against Rs. 14,04,000/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 1,41,360/-. Accordingly, we answer point No. II] also in the 'Negative'. In the light of the facts and circumstances of the case, as stated above, the appeals filed by the Insurer as well as the claimants are allowed in part. The impugned common judgment and award dated 5th January 2012, passed in MVC No. 6404/2008, by the XXII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified. The contributory negligence fixed on the riders of both the Motor Cycles in the ratio of 80:20 is hereby set aside and the same is hereby modified, by re-fixing contributory negligence in the ratio of 60:40, i.e. 60% on the part of the rider of the Motor cycle, bearing Registration No. KA-05/EW-1031 and 40% on the part of the deceased rider of the Motor Cycle, bearing Registration No. AP-03/J-8198, to meet the ends of justice. The total compensation awarded by Tribunal is modified, awarding compensation of Rs. 25,75,600/- as against 17,55,000/- awarded by Tribunal. As per the contributory negligence fixed at 40% on the part of the deceased rider of Motor Cycle bearing Registration No. AP-03/J-8198, the claimants are entitled to only 60% of the total compensation. Accordingly, 60% of Rs. 25,75,600/- works out to Rs. 15,45,360/- as against Rs. 14,04,000/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 1,41,360/-. The Insurer is directed to deposit the enhanced compensation with interest from the date of petition till the date of realization, excluding interest for the period from 12-02-2009 to 07-06-2010, as ordered by Tribunal, within four weeks from the date of receipt of copy of the judgment. Out of the enhanced compensation of a sum of Rs. 1,41,360/-, a sum of Rs. Out of the enhanced compensation of a sum of Rs. 1,41,360/-, a sum of Rs. 1,00,000/- shall be invested in Fixed Deposit, in the name of the first claimant-wife of deceased N. Nagaraju, in any Nationalized/Scheduled Bank, for a period often years, renewable for another ten years, with liberty reserved to her to withdraw the interest periodically; Remaining Rs. 41,360/- with full interest calculated as per the aforesaid order shall be released in favour of the first claimant, immediately on deposit by the Insurer; The statutory amount in deposit by the Insurer in M.F.A. No. 4592/2012 is directed to be transmitted to the jurisdictional Tribunal, forthwith. Office to draw award, accordingly. In view of disposal of main matter, I.A.I/2013 for release of amount does not survive for consideration and is accordingly, disposed of as having become infructuous.