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2019 DIGILAW 1189 (KAR)

National Insurance Company Limited v. Ashiwini

2019-06-11

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The insurer-National Insurance Company being aggrieved by the judgment and award dated 27/2/2013 passed in MVC Nos.1328/2012 and 1330/2012 on the file of the Fast Track Court II and Additional MACT, Belgaum, has filed these appeals. 2. It is the case of the claimants before the Tribunal that on 24/6/2011 both the deceased Amruth Arjun Nejkar and Chandrakanth Annasaheb Kuthe were proceeding on motorcycle bearing registration No.KA- 22/W-6440 was ridden by the said deceased Amruth Arjun Nejkar and another was pillion rider. While they were proceedings at about 10.10p.m., infront of Ambabai Temple at Mudhal, a tata goods vehicle bearing No. MH-09/Q-6880 was abandoned on the middle of the road causing obstruction and danger without any stone guard and signallight. This being the fact, the rider of the said motorcycle Amruth Nejkar came in contact abruptly with the abandoned Tata goods vehicle. Both the rider and pillion rider sustained injuries and succumbed to the said injuries on the spot itself. The claimants in MVC No.1328/2012 are the LRs of Chandrakanth Kuthe and the claimants in MVC No.1330/2012 are the LRs of the deceased Amruth Nejkar, claimed compensation. The claimants further stated that the deceased Amrut Nejaker was aged about 31 years and was doing agriculture and earning Rs.40,000/- per year. The deceased was contributing his earning towards his family. The LRs of the deceased Chandrakanth Kuthe have stated that he was aged about 27 years and was doing agriculture and earning Rs.40,000/- per year and contributing his earning to his family. Due to the death of the deceased, the claimants in both the cases have been put to hardship and lost their dependency. 3. Both the claim petitions were filed under Section 163(A) of the Motor Vehicles Act against the owner and insurer of the offending vehicle. 4. In response to notice, respondent Nos.1 and 2 appeared before the Tribunal and filed objections separately. Subsequently, respondent No.3-owner of the motorcycle was also impleaded as respondent No.3. However, he remained absent inspite of notice served on him. Respondent Nos.1 and 2 filed their written statement denying the averments made in the claim petition including the age, occupation and earnings of the deceased. They have also denied that the deceased were riding the motorcycle in a moderate speed and that the Tata good vehicle was parked on the middle of the road. Respondent Nos.1 and 2 filed their written statement denying the averments made in the claim petition including the age, occupation and earnings of the deceased. They have also denied that the deceased were riding the motorcycle in a moderate speed and that the Tata good vehicle was parked on the middle of the road. They have denied that the accident happened solely due to rash and negligent act of the driver of the tata goods vehicle. Respondent No.1 has stated that the goods vehicle was insured with respondent No.2 on the date of alleged incident and thereby if there is any liability to pay compensation, it shall be saddled upon respondent No.2. Respondent No.2 has denied the manner in which the accident occurred and he has contended that alleged incident happened solely due to the rash and negligent act on the part of the rider of the motorcycle. 5. Based on the pleadings of the parties, Tribunal framed the issues. Both the cases were heard together by recording the common evidence. The claimants got examined themselves as PW-1 & 2 and got marked 23 documents as Exs.P1 to 23. Respondent No.2 examined one witness and got marked two documents as Exs.R1 and R2. 6. The learned member of the Tribunal after hearing both the parties passed the impugned judgment and awarded a compensation of Rs.4,66,000/- in MVC No.1328/2012 with interest at 9% p.a. from the date of petition till the date of realization and awarded a compensation of Rs.4,66,000/- in MVC No.1330/2012 with interest at 9% p.a. from the date of petition till the date of realization awarded. 7. The insurer being aggrieved by the judgment and award, has filed this appeal, on the ground that the rider of the motorcycle is tortfeasor and his LRs are not entitled to maintain the claim petition under Section 163-A of the M.V. Act. It is also further contended that the Tribunal has erred in deducting < of the income of the deceased towards personal expenses, which ought to have been 1/3rd of the income. 8. Heard the learned counsel for the appellants and respondents. 9. In view of the submission of the learned counsel for the parties, the short question which arises for consideration before this Court is as to "whether the appellant insurer has made out any ground to interfere with impugned judgment and award?" 10. 8. Heard the learned counsel for the appellants and respondents. 9. In view of the submission of the learned counsel for the parties, the short question which arises for consideration before this Court is as to "whether the appellant insurer has made out any ground to interfere with impugned judgment and award?" 10. Learned counsel for the appellants in both the cases submitted that the Tribunal ought to have deducted 1/3rd of the income of the deceased towards the personal expenses instead of 1/4th as per Schedule II of M.V.Act. The other contention that the rider of the motorcycle is also tortfeasor and there is contributory negligence on his part cannot be considered since both the petitions were filed for claiming compensation under Section 163(A) of the M.V. Act in view of the decision in the case of United India Insurance Co.Ltd. Vs. Sunil Kumar and another, (2017) AIR SC 5710. 11. Learned counsel for the respondents-claimants supports the impugned judgment and award. The only contention of the appellant-insurer which needs to be considered is that is whether the Tribunal is justified in deducting < of the income of the deceased towards their personal and living expenses and whether it ought to be 1/3rd. 12. Schedule II of the Motor Vehicles Act, 1988 provides for awarding Third party compensation under Section 163A. It is specifically provides that the amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. 13. Therefore, it is necessary to deduct 1/3rd of the income of the deceased towards personal expenses. 14. Therefore on reassessment of the compensation, interms of the said provision the claimants in both the cases are entitled for compensation as follows:- Loss of dependency (24000 X 17) 4,08,000.00 Loss of consortium in respect of wife of deceased (awarded by the Tribunal ) 5,000.00 Towards funeral expenses (awarded by the Tribunal ) 2,000.00 Total 4,15,000.00 ORDER Both the appeals are partly allowed. Claimants in MVC No.1328/2012 are awarded with compensation of Rs.4,15,000/-, with interest at 9% p.a. from the date of petition till realization and claimants in MVC No.1330/2012 are awarded with compensation of Rs.4,15,000/- with interest at 9% p.a. from the date of petition till realization. Claimants in MVC No.1328/2012 are awarded with compensation of Rs.4,15,000/-, with interest at 9% p.a. from the date of petition till realization and claimants in MVC No.1330/2012 are awarded with compensation of Rs.4,15,000/- with interest at 9% p.a. from the date of petition till realization. The amount deposited by the appellant-Insurance Company in both appeals shall be transmitted to the concerned Tribunal.