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2017 DIGILAW 69 (KAR)

Ramanna v. Rameez

2017-01-09

B.MANOHAR

body2017
JUDGMENT : Mr. B. Manohar, J. The claimants as well as M/s. Sriram General Insurance Company have filed these two appeals challenging the judgment and award dated 30th December, 2011 made in MVC No. 1361/2010 passed by the Motor Accident Claims Tribunal, Tumkur (hereinafter referred to as ' the Tribunal' for short). 2. The claimants being not satisfied with the quantum of compensation and also restricting the liability of the insurance company only to an extent of 50% filed MFA No.3902/2012, whereas the insurance company being aggrieved by the exorbitant quantum of compensation awarded; deducting 1/3rd towards personal expenditure, since the deceased was a bachelor and fastening 50% liability on the insurer of parked lorry has filed MFA.No.5143/2012. Hence, both the appeals are clubbed together and disposed of by this common judgment. 3. The rank of the parties is referred to as arrayed before the Tribunal. 4. The facts leading to the filing of these two appeals are as follows: The claimants are the father and mother of deceased Harish. They filed a claim petition contending that on 7-8-2010, while the deceased Harish proceeding in a Maruthi Car bearing Registration No.KA-01/N-6994 along with three other persons towards Dharmasthala, on B.M. bye-pass road, opposite to Rajeev Engineering College, Hassan, a lorry bearing Registration No.KA-16/A-3714 was parked without showing the signal or indicator light. Due to that, Maruthi Omni dashed against the lorry from the rear side. Due to that, three persons travelling in the car including Harish died on the spot. The accident had taken place due to the rash and negligent parking of the lorry in the middle of the National Highway without any indicator. Prior to the accident, the deceased was working as a Driver and earning Rs.10,000/- p.m. At the time of death, he was aged about 22 years. Hence sought for compensation of Rs.10,00,000/-. 5. In response to the notice issued by the Tribunal, respondents 1 and 2 entered appearance. The first respondent in the written statement denied the entire averments made in the claim petition and also contended that the compensation claimed is excessive. Due to the rash and negligent driving of the Maruthi Omni car, the accident had occurred. The driver of the lorry was holding valid and effective driving license and the insurance policy was in force as on the date of accident. Due to the rash and negligent driving of the Maruthi Omni car, the accident had occurred. The driver of the lorry was holding valid and effective driving license and the insurance policy was in force as on the date of accident. Hence sought for dismissal of the claim petition as against Respondent No.1. 6. The second respondent in their written statement inter alia contended that the driver of the offending lorry was not holding valid and effective driving license to driver the lorry. The liability of the insurance company is restricted to the terms and conditions of the policy. Due to the rash and negligent driving of the Maruthi Omni, it was dashed against the rear portion of the lorry. Hence the insurer of the lorry is not liable to compensate the claimants and sought for dismissal of the claim petition as against Respondent No.2. 7. On the basis of pleadings of the parties, the Tribunal framed necessary issues. 8. The first claimant got examined himself as P.W.1 and the employer of the deceased was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P9. On behalf of the respondents, none of the witnesses were examined, however, insurance policy of the offending lorry was marked as Ex.R1 with the consent of the both the parties. 9. The Tribunal, after appreciating the oral and documentary evidence let in by the parties, taking into consideration IMV report, spot panchanama, copy of the complaint, held that the accident occurred due to rash and negligent driving of the Maruthi Omni car, it dashed against the parked lorry on the left side of the road. The driver of the lorry has also contributed for the cause of accident as he had parked the lorry on the National Highway without indicators. Hence, the drivers of both the vehicles have contributed to the accident to an extent of 50% each. With regard to quantum of compensation is concerned, no document has been produced to show that the deceased was earning Rs.10,000/- p.m. Taking the income of the deceased at Rs.4,500/- p.m., deducting 1/3rd towards his personal expenditure taking into consideration age of the mother of the deceased, applying multiplier 11, awarded a sum of Rs.3,96,000/- towards loss of dependency, Rs.10,000/- towards loss of love and affection; Rs.15,000/- towards transportation of dead body and funeral expenses. In all, the Tribunal has awarded a sum of Rs.4,21,000/-. In all, the Tribunal has awarded a sum of Rs.4,21,000/-. Since the owner and insurer of the Maruthi Omni were not made parties, 50% liability was fastened on the driver of the lorry and 50% on the driver of the Maruthi Omni car jointly and severally. Being aggrieved by the judgment and award passed by the Tribunal fastening the liability to an extent of 50% on the driver of Maruthi Omni and not being satisfied with the quantum of compensation, the claimants have preferred MFA No.3902/2012 whereas the insurance company being aggrieved by fastening liability on the driver of the lorry to an extent of 50% and deducting 1/3rd towards personal expenditure of the deceased, since the deceased was a bachelor, filed MFA No.5143/2012. 10. Sri. Patel D. Karegowda, learned counsel appearing for the claimants contended that the quantum of compensation awarded taking the income of the deceased at Rs.4,500/- p.m., and adopting the multiplier considering the age of mother of the deceased is contrary to law. Further fastening liability to an extent of 50% on the driver of the Maruthi Omni car is contrary to law. The driver of the lorry had parked the vehicle on the National Highway without any indicator. Further, there was no reflector to the said lorry. The driver of Maruthi Omni proceeded in the National Highway without noticing the parked vehicle dashed against the rear side of the said lorry. In view of that, three passengers including the driver died on the spot. Further, in MVC No.6260/2010 filed by one of the claimants in the very same accident, the Tribunal has fastened the contributory negligence to an extent of 70% of the driver of the lorry and 30% on the driver of Maruthi Omni car. Hence, fastening 50% liability on each of the driver of the lorry and as well as Maruthi Omni is contrary to law. 11. On the other hand, Sri. H.H. Keshava Prashanth, learned counsel appearing for the insurance company contended that deceased was a bachelor, aged about 23 years, deduction of the 1/3rd towards his personal expenditure is contrary to law. Further fastening the liability to an extent of 50% on the insurance company is contrary to law. 11. On the other hand, Sri. H.H. Keshava Prashanth, learned counsel appearing for the insurance company contended that deceased was a bachelor, aged about 23 years, deduction of the 1/3rd towards his personal expenditure is contrary to law. Further fastening the liability to an extent of 50% on the insurance company is contrary to law. Due to the negligence on the part of driver of the Maruthi Omni the accident occurred from the rear side and 100% liability ought to have been fastened on the driver of the Maruthi Omni and sought for allowing the appeal filed by them. 12. I have carefully considered the arguments addressed by the learned counsel for the parties. Perused the judgment and award oral and documentary evidence adduced by the parties and other relevant records. 13. The dispute in these appeals is with regard to quantum of compensation and also extent of the liability. The income of Rs.4,500/- p.m. taken by the Tribunal is contrary to law. The deceased was aged about 23 years, he was a driver by profession. The employer of the deceased i.e. M/s. Vasu Batteries in his evidence has stated that he was paying the deceased a sum of Rs.10,000/- p.m., however, it has not been proved in accordance with law. While awarding compensation, the Tribunal ought to have awarded reasonable compensation. The accident occurred in the year 2010, the deceased was a driver by profession, the Tribunal ought to have taken income of the deceased at Rs.6,000/- p.m. Further, as per the judgment of the Hon'ble Supreme Court in the case of Amrit Bhanu Shali and others v. National Insurance Company Limited and others reported in 2012 ACJ 2002 : (2012 AIR SCW 3901) and latest judgment of the Hon'ble Supreme Court in the case of Munnalal Jain v. Vipinkumar Sharma reported in (2015) 6 SCC 347 : (AIR 2015 SC (Supp) 1130) age of the deceased has to be taken into consideration while applying the multiplier. In the instant case, the deceased was aged about 23 years, applying the multiplier 18, the claimants are entitled for compensation of Rs.6,48,000/- towards loss of dependency and a sum of Rs.45,000/- towards conventional heads. In all, 6,93,000/-, as against Rs.4,21,000/- awarded by the Tribunal with interest at 6% p.a. 14. With regard to contributory negligence is concerned, the driver was not supposed to park the lorry on the National Highway. In all, 6,93,000/-, as against Rs.4,21,000/- awarded by the Tribunal with interest at 6% p.a. 14. With regard to contributory negligence is concerned, the driver was not supposed to park the lorry on the National Highway. In case of exigency, if the driver of the lorry is forced to park the lorry or the National Highway, he has put the indicators. No evidence has been placed to show that the driver of the lorry had put on the indicators. In the very same accident, the Tribunal has assessed the contributory negligence to an extent of 70% on the part of driver of the lorry and 30% on the part of driver of the Omni car in MVC.No.6260/2010. The said order passed by the Tribunal was upheld by this court in MFA.No.8757/2012 c/w MFA No.9166/2012. Hence, in these appeals also, contributory negligence has to be fixed on the part of driver of the lorry to an extent of 70% and 30% on the part of driver of Maruthi Omni car. Accordingly, I pass the following: ORDER 15. MFA No.3902/2012 filed by the claimants is allowed in part. The claimants are entitled for compensation of Rs.6,93,000/- as against Rs.4,21,000/- with interest at the rate of 6% p.a. Out of the said compensation amount, the insurance company is liable to compensate the claimant to an extent of 70%. In view of the above finding, MFA No.5143/2012 filed by the insurance company is dismissed.