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2014 DIGILAW 902 (KAR)

Gangamma v. K. Rukamaya

2014-10-15

K.L.MANJUNATH, RAVI MALIMATH

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Judgment : 1. Though the matter is listed for orders, by consent of the parties, the appeal is heard on merits. 2. The present appeal is filed by the claimants being not satisfied with the judgment and award passed by the MACT, Tumkur, dated 10.01.2013 passed in MVC No.929/2011. The appellants were claimants before the court below. The first appellant is the widow, appellant Nos. 2 and 3 are the daughters and appellant No.4 is the mother of the deceased Gangaiah who died in a road traffic accident occurred on 02.05.2011. 3. According to the petition averments, Gangaiah was a pillion rider of motor cycle bearing KA.06-U-2726. Rangaswamy, PW2 was the rider of the motorcycle. They were proceeding from Yediyur towards Kunigal side. From the opposite direction, a car bearing No. KA.19-MB-3033 was coming in a rash and negligent manner and dashed against the motor cycle. As a result of which the deceased sustained fatal injuries and he was shifted to Government General Hospital, Tumkur and succumbed injuries on 25.05.2011. Therefore, the claim petition was lodged. Claimants contended that the deceased was a mason earning a sum of Rs.10,000/- to Rs.11,000/-per month. He was the sole bread earner of the family. The owner of the car did not contest the matter. The insurance company contested the matter contending that the claim petition is lodged in collusion with the police and that the driver of the car was not responsible for the accident occurred. 4. In order to prove the respective contentions, on behalf of the claimants, three witnesses were examined. Amongst them, PW1 is the widow of the deceased, PW2 is the eye witness to the accident, who was riding the motorcycle. PW3 is Dr. Nanjundappa.A. was examined to prove the cause of the death. On behalf of the insurance company, no witnesses were examined except marking Ex.R1, copy of the insurance policy and Ex. R2 Sketch of scene of offence. 5. It is the case of the claimants that on 2.05.2011 at about 9.00 AM, the accident occurred near Magadipalya Weighbridge on National Highway No.48. The evidence of PW2 is not seriously challenged by the insurance company. The driver of the car is not examined except marking Ex.R2, the sketch. R2 Sketch of scene of offence. 5. It is the case of the claimants that on 2.05.2011 at about 9.00 AM, the accident occurred near Magadipalya Weighbridge on National Highway No.48. The evidence of PW2 is not seriously challenged by the insurance company. The driver of the car is not examined except marking Ex.R2, the sketch. The learned judge relying upon the sketch without considering the evidence of PW2 has come to the conclusion that the accident occurred due to contributory negligence of the rider of the motorcycle and the driver of the car. According to the Tribunal, 60% of negligence is attributed to the rider of the motorcycle and 40% to the car driver. 6. Considering the income of the deceased at Rs.4,000/-per month, deducting 1/4th towards his personal expenses, the Tribunal has awarded a sum of Rs.5,04,000/-under the head 'Loss of Dependency' and Rs.12,400/- towards 'Medical Expenses'. Under the other Conventional Heads, Rs.27,000/-. In all, a sum of Rs.5,43,400/-is awarded. Out of which, 60% is deducted towards contributory negligence of the driver of the motorcycle. In all a sum of Rs.2,17,360/- alone has been awarded by the tribunal. Therefore the present appeal is filed. 7. We have heard the learned counsel for the parties. 8. It is the case of the appellant that the court below has committed an error in holding that the accident occurred due to contributory negligence of the car driver and the rider of motorcycle and according to him the Tribunal without appreciating the evidence of PW2 and without assigning any reasons as to how there could be a contributory negligence and even without considering Ex.R2 has erroneously held that the accident occurred due to contributory negligence. In the circumstances, he requests the court to set aside the finding of the court below on the question of negligence. 9. He further contends that the Tribunal has also committed an error in fixing the income of the deceased at Rs.4,000/- per month when the accident has taken place on 02.05.2011 and the income of the mason in 2011 could not be less than Rs.6,000/-per month. Therefore, he further contends that the awarding of compensation under the conventional heads is also on lower side. In the circumstances, he requests to allow the appeal. 10. Therefore, he further contends that the awarding of compensation under the conventional heads is also on lower side. In the circumstances, he requests to allow the appeal. 10. Per contra, learned counsel appearing for the insurance company contends that the Tribunal is justified in holding that there was a contributory negligence of the rider of the motorcycle and the car driver and the finding of the Tribunal is based on Ex. R2 and does not call for any interference. He further submits that since the appellants did not place any material to show the actual income of the deceased, the quantum of the compensation awarded by the tribunal is also justified. In the circumstances, he requests the court to dismiss the appeal. 11. Having heard the learned counsel for the parties, we have to consider the following points in this appeal:- 1. "Whether the finding of the Tribunal on the question of negligence requires to be interfered with? 2. Whether the quantum of compensation awarded is required to be enhanced?" 12. So far as point No.1 is concerned, admittedly, the accident occurred on National Highway No.48. Both the vehicles were driven in the opposite direction. The rider of the motorcycle was riding from yediyur towards Kunigal and the car was coming in the opposite direction from Kunigal towards Yediyur. The owner or the driver of the car have not contested the matter. They have not denied the accident or the negligence. It is not the case of the insurance company in its pleading that there is a contributory negligence. The evidence of PW2, the rider of motorcycle is not seriously challenged though the Tribunal has accepted that the evidence of PW2 is not challenged, without assigning any reasons, the learned judge has come to the conclusion that there is contributory negligence. In the circumstances, we are of the view that the finding of the Tribunal on the question of negligence requires to be set aside. Accordingly, we hold that the accident occurred due to the rash and negligent driving of the driver of the car. 13. So far as point No.2 is concerned, admittedly, the deceased was a mason, the accident has taken place in May, 2011. Even if he is considered as ordinary coolie, the court has to consider the notional income of a mason at the rate of Rs.6,000/-per month. 13. So far as point No.2 is concerned, admittedly, the deceased was a mason, the accident has taken place in May, 2011. Even if he is considered as ordinary coolie, the court has to consider the notional income of a mason at the rate of Rs.6,000/-per month. Accordingly, we hold that the deceased was earning a sum of Rs.6,000/-per month. If we deduct 1/4th of it towards personal expenses, the monthly income would come to Rs.4,500/-per month. If it is calculated per annum, it will be Rs.54,000/- p.a. (Rs.4,500 x 12 months) and considering his age, the Tribunal has rightly applied the multiplier of 14'. It will come to Rs.54,000 x 14 = Rs.7,56,000/-. Then Rs.7,56,000/- has to be awarded under the head 'Loss of Dependency'. We do not want to disturb the amount of Rs.12,400/- awarded under the head 'Medical Expenses'. In all, a sum of Rs.27,000/- is awarded under the conventional heads. Considering the age of the widow, age of the daughters and the age of the mother of the deceased, we are inclined to award a sum of Rs.1,50,000/- towards 'Loss of Consortium', 'Loss of Love and Affection', 'Funeral Expenses' and 'Transportation of the dead body' . 14. In total, the claimants are entitled for a total compensation of Rs.9,18,400/-. (Nine Lakhs Eighteen Thousand and Four Hundred Rupees Only) 15. In the result, the appeal is allowed. The judgment and award passed by the MACT, Tumkur, in MVC No. 929/2011 dated 10.01.2013 is hereby set aside and modified holding that the claimants are entitled for a total compensation of Rs. 9.18.400/-with interest at 6% per annum from the date of petition till the date of payment. So far as the apportionment of compensation is concerned, we confirm the apportionment as ordered by the tribunal.