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2014 DIGILAW 131 (KAR)

Shivaji v. Ravi

2014-02-12

A.S.PACHHAPURE

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JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for both the parties, it is taken up for final disposal. 2. The appellant dissatisfied with the amount of compensation awarded by the Tribunal for the death of one Shantabai in a motor vehicle accident, has filed this appeal seeking enhancement and also challenging the finding on negligence. 3. The facts reveal that on 12.06.2008 at 12.00 Noon, Shantabai (the deceased) was proceeding in the Auto Rickshaw bearing No.KA-36/5938 from Hosakera towards Shahapur and at that time another Goods Auto bearing. No.KA-28/A-6400 came from opposite direction driven in a rash and negligence manner and dashed the Auto in which Shantabai was travelling and thereby she sustained severe injuries; she was shifted to the hospital and on the way she succumbed to the injuries due to severe bleeding. 4. The appellant being her husband, made a claim before the Tribunal for compensation for loss of dependency and other conventional heads. He examined himself as PW.1 and in his evidence, the documents Ex.P1 to P10 were marked. Ex.R1 – insurance policy is admitted in evidence with consent. 5. The Tribunal, after appreciating the evidence on record, held the contributory negligence of 30% on the part of the driver of the auto rickshaw in which the deceased was travelling and 70% on the driver of the other vehicle and having calculated the compensation at Rs.5,79,000/-, awarded only a sum of Rs.4,05,300/-with interest @ 6% p.a. Dissatisfied with the quantum of compensation and also the finding on negligence, the appellant is before this Court in appeal. 6. I have heard the learned counsel for both the parties. 7. The points that arise for my consideration are, 1. Whether the finding on negligence by the Tribunal is erroneous? 2. Whether the appellant is entitled to enhanced compensation? If so, to what extent? 8. Learned counsel for the appellant would contend that the complaint of the incident was filed against the driver of the goods auto rickshaw and the complainant is an eyewitness who has sated the negligent driving of the driver of the goods auto and therefore, he would submit that the Tribunal committed an error in assessing the negligence on the part of the driver of the passenger auto rickshaw to an extent of 30%. He also submits that the compensation awarded by the Tribunal is on the lower side. He also submits that the compensation awarded by the Tribunal is on the lower side. On the other hand, learned counsel for respondent No.2 – insurer has supported the judgment and award of the Tribunal. 9. Admittedly, the appellant is not an eyewitness and has failed to examine any person who has seen the accident, it is only on the basis of the documents which have been produced by him that he wants to allege the rash and negligent act on the part of the driver of the goods auto. No doubt, the complaint Ex.P1a reveals that one Devendrappa was an inmate in the auto rickshaw and he has lodged the complaint against the driver of the goods auto alleging rash and negligent act on his part. The appellant has produced the certified copy of the Spot Mahazar at Ex.P4. Perusal of the copy, which is made available, does not reveal the exact spot of the accident on the road. The accident in question has occurred on the road between Hosakera-Shahapur which runs East-West. The deceased was travelling in the Auto Rickshaw bearing No.KA-36/5938 from West to East, whereas the goods Auto Rickshaw bearing No.KA-28/A-6400 was proceeding from East to West. At least to show that hitting of the vehicle was either on the Northern side of the road or Southern side of the road, no evidence is made available. Except the contents of the complaint Ex.P1a, the other documents which have been produced by the appellant are of no help to prove the negligence exclusively on the part of the driver of the goods auto. In such circumstances, it cannot be said that the finding arrived at by the Tribunal is either erroneous or illegal. 10. So far as the quantum of compensation is concerned, the Tribunal has assessed the income of the deceased at Rs.4,000/-per month. The appellant is the only dependent, the Tribunal has deducted 1/3 towards the personal expenses of the deceased. Though it is erroneous, no interference could be done, as there is no appeal by the insurer. So far as the compensation towards the loss of dependency is concerned, the income is assessed at Rs.4,000/-per month. No material is placed on record to establish that this is on the lower side. Though it is erroneous, no interference could be done, as there is no appeal by the insurer. So far as the compensation towards the loss of dependency is concerned, the income is assessed at Rs.4,000/-per month. No material is placed on record to establish that this is on the lower side. Anyhow, the Tribunal has granted a sum of Rs.35,000/-on different conventional heads, I think the compensation towards the loss of consortium, loss of love and affection and loss to estate has to be enhanced to some extent. Taking into consideration the contribution of negligence at 70%, it would be just and proper to award a sum of Rs.7,500/-in addition to the compensation awarded by the Tribunal with interest @ 6% p.a. Therefore, the points raised are answered in the affirmative. Consequently, the appeal is allowed in part. The appellant is entitled to a sum of Rs.7,500/-with interest @ 6% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal.