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2020 DIGILAW 1375 (KAR)

Husensab v. Saleem

2020-07-09

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G. Pandit, J. - The claimants and the Insurance Company are in appeal aggrieved by the Judgment and award dated 01.12.2015 in MVC No.594/2014 on the file of the Senior Civil Judge & Addl. MACT, Saudatti (for short "the tribunal"). 2. Mfa No.101843/2016 is by claimants not satisfied with the quantum of compensation as well as saddling the contributory negligence to an extent of 25% on the deceased. Whereas, the Insurance Company is in appeal in MFA No.100694/2016, challenging saddling of contributory negligence at 75% on it. 3. The claimants are parents of the deceased-Hasan Husensab Kadakol. The claim petition came to be filed under Section 166 of Motor Vehicles Act, seeking compensation for the death of said Hasan Husensab Kadakol in a road traffic accident. It is stated that, on 23.07.2013, the deceased, who was working as cleaner was proceeding in goods truck bearing registration No.KA-24/B-0777 on Yergatti Munavalli road, near Benakatti village/canal, the driver of the said truck driven the same in a rash and negligent manner without observing road condition. Due to which, the deceased, who was sitting on the cleaner seat fell down from the truck, sustained grievous head injuries and subsequently succumbed to the said injuries on 25.07.2013. It is stated that, the deceased was working under respondent No.1 and was earning Rs.20,000/- per month, which he contributed to the maintenance of his family. 4. On issuance of notice, both respondent Nos.1 and 2 appeared before the Tribunal and filed their separate statement of objections. The respondent No.1 owner-cumdriver of the offending vehicle denied the manner of accident and further denied that the occurrence of accident due to the negligence of the driver of the offending vehicle. Further, the respondent No.1 specifically contended that, the deceased was having the habit of chewing Gutaka and in order to spit Gutaka, he drew his head out of the lorry. In that process, he lost his balance and fell down from the truck. Further, respondent No.1 stated that the truck was insured with respondent No.2 and the compensation, if any, is to be paid by the respondent No.2. The Insurance Company in its statement of objection denied the entire claim petition averments and it also denied the occurrence of the accident due to the rash and negligent driving of the offending vehicle by its driver. The Insurance Company in its statement of objection denied the entire claim petition averments and it also denied the occurrence of the accident due to the rash and negligent driving of the offending vehicle by its driver. It also contended that, the deceased was not traveling as a cleaner, but he was traveling as un-authorized passenger in the goods vehicle, violating the terms and conditions of the policy. Therefore, it is prayed for absolving from the liability. 5. Claimant No.2, the mother of the deceased examined herself as P.W.1 and also marked 12 documents as Exs.P1 to P12. Respondents examined R.W.1 to R.W.3 and marked 8 documents as Exs.R1 to R8. The Tribunal on careful consideration of the material placed before it, awarded total compensation of Rs.8,90,800/- with interest at the rate of 9% per annum from the date of petition till deposit, on the following heads: S. No. Head Amount 1 Loss of dependency Rs.7,56,000/- 2 Loss of estate, loss of love and affection, transportation of dead body, funeral and obsequies etc., Rs.1,00,000/- 3 Towards medical expenses for survival of deceased Rs.34,800/- TOTAL Rs.8,90,800/- 6. While awarding the above compensation, the Tribunal has assessed the income of the deceased at Rs.7,000/- per month, adopted 18' multiplier and deducted 50% towards personal living expenses of the deceased. Further, saddled liability of 25% on the deceased. Against which the claimants are in appeal praying for enhancement of compensation as well as questioning saddling of contributory negligence to an extent of 25% on the deceased. The Insurer is in appeal contending that the accident had occurred solely due to the negligence of the deceased questioning saddling of liability to an extent of 75% on the owner of the vehicle. 7. Heard the learned counsel for the appellantsclaimants, learned counsel for the appellant-Insurance company and the learned counsel for the respondent No.1 i.e. owner-cum-driver of the offending vehicle. Perused the Trial Court records. 8. The learned counsel for the claimants would submit that, the Tribunal committed an error in not granting any compensation under the head of "future prospects" since the deceased was aged 19 years. The claimants would be entitled to 40% of the assessed income towards "future prospects". He also submits that, the claimants are parents of the deceased and as such they would be entitled to a sum of Rs.40,000/- each on the head of "loss of filial consortium". The claimants would be entitled to 40% of the assessed income towards "future prospects". He also submits that, the claimants are parents of the deceased and as such they would be entitled to a sum of Rs.40,000/- each on the head of "loss of filial consortium". Thus, he prays for enhancement of the compensation. With regard to saddling of the contributory negligence to an extent of 25% on the deceased, it is submitted that the accident occurred solely due to the negligence of the driver of the offending vehicle and there was no negligence on the part of the deceased. As such, the Tribunal is not justified in saddling 25% contributory negligence on the deceased. 9. He submits that the charge sheet is filed against the driver of the offending vehicle and the driver of the vehicle had not lodged any complaint stating that due to the negligence of the deceased, he fell down from the lorry and sustained injuries. Learned counsel for the claimant would invite the attention of this Court to Ex.P2-the complaint, wherein the father of the deceased claimant No.1 stated that the deceased was traveling in the lorry sitting in the seat of the cleaner and due to the jump of the vehicle, the deceased fell down and sustained injuries. Further, the learned counsel for the claimant would submit that the lorry was proceeding in Kachcha road and due to the road conditions, the lorry jumped and the deceased fell down from the vehicle. The tribunal without properly appreciating the materials on record saddled the contributory negligence to an extent of 25% on the deceased, which is liable to be set aide. 10. Per contra, the learned counsel for the Insurance Company would submit that the Insurance Company is not liable to pay any compensation and prays for absolving it from liability, stating that the accident had taken place solely due to the negligence of the deceased. He invites the attention of the Court to the statement filed by the driver as well as the statement filed by the Insurance Company, wherein they have taken a specific plea that the deceased was in the habit of chewing Gutaka and while trying to spit the Gutaka, he lost the balance and fell from the lorry. He invites the attention of the Court to the statement filed by the driver as well as the statement filed by the Insurance Company, wherein they have taken a specific plea that the deceased was in the habit of chewing Gutaka and while trying to spit the Gutaka, he lost the balance and fell from the lorry. Further, the learned counsel for the Insurer invites the attention of this Court to the evidence of RW1, the driver of the lorry, wherein the driver has stated that the deceased while trying to spit Gutaka, lost the balance and fell down from the lorry resulting in sustaining the injuries to his head. Thus, he prays for allowing the appeal filed by the Insurance Company. 11. In addition to that, the learned counsel submits that the quantum of compensation awarded by the tribunal is proper and correct. The claimant would not be entitled for any enhancement of compensation. He submits that in the absence of any material to establish the income of the deceased, the tribunal has rightly taken the notional income of the deceased at Rs.7,000/- per month, which is correct and proper. 12. Having heard the learned counsel appearing for the parties, the following points that would arise for our consideration: i) Whether the tribunal is justified in saddling the contributory negligence to an extent of 25% on the deceased? ii) Whether the claimants would be entitled to addition of 40% of the assessed income towards future prospects? We answer point No.1 in the negative and point No.2 in the affirmative for the following: REASON 13. The accident, which occurred on 23.07.2013 involving TATA HGV Goods Truck bearing No.KA-24/B-0777 and the accidental death of Shri Hasan Husensab Kadakol is not in dispute in these appeals. 14. The claimant is in appeal challenging saddling of 25% contributory negligence as well as praying for enhancement of compensation and so also the insurer is in appeal challenging the saddling of liability to an extent of 75% on it. The claimant states that the deceased was working as a cleaner under respondent No.1 in truck bearing No.KA-24/B-0777. 14. The claimant is in appeal challenging saddling of 25% contributory negligence as well as praying for enhancement of compensation and so also the insurer is in appeal challenging the saddling of liability to an extent of 75% on it. The claimant states that the deceased was working as a cleaner under respondent No.1 in truck bearing No.KA-24/B-0777. On 23.07.2013, the deceased was proceeding in the said lorry and while the lorry was proceeding on Yaragatti-Munavalli road, near Benakatti village/canal on service road i..e, kachcha road, due to rash and negligent driving by the driver of the lorry, the deceased, who was sitting on the cleaner seat fell down and sustained grievous injuries to the head and subsequently succumbed to the said injuries. 15. Ex.P2 is the complaint copy lodged by the father of the deceased. In his complaint, the father of the deceased states that the deceased was sitting on the cleaner seat and due to the sudden jump, the deceased fell down and sustained grievous injuries to the head. Due to the accident, the deceased fell down from the lorry is not in dispute. The question is whether the deceased fell down due to his own negligence or due to the negligence of the driver of the lorry? 16. Respondent No.l has examined the driver of the lorry as RW1. In his evidence, he has stated that the deceased was in the habit of chewing Gutka and when he tried to spit the Gutaka, he lost the balance and fell down from the lorry. In the crossexamination, the claimant suggested that there was hump on the road and due to the jump, the deceased fell down from the vehicle. Even though, the tribunal has not raised any issue with regard to contributory negligence, has considered the said aspect and saddled the contributory negligence to an extent of 25% on the deceased and 75% to the respondent No.1 Insurer. On occurance of accident, the driver-RW1 ran away from the spot and moreover charge sheet was filed against the driver-RW1. Looking to the entire material on record and on reassessment of the evidence of RW1 and Ex.P2, the complaint, we are of the view that the accident occurred due to the contributory negligence of both by the driver of the vehicle as well as the deceased, which could be reassessed at 60% and 40% respectively. 17. Looking to the entire material on record and on reassessment of the evidence of RW1 and Ex.P2, the complaint, we are of the view that the accident occurred due to the contributory negligence of both by the driver of the vehicle as well as the deceased, which could be reassessed at 60% and 40% respectively. 17. The claimant states that the tribunal had failed to award any compensation on the head of future prospects. The deceased was admittedly aged about 19 years as on the date of accident. As per the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd.Vs. Pranay Sethi and Ors., (2017) AIR SC 5157 , the claimant would be entitled to 40% of the assessed income towards future prospects. 18. In the absence of any formal proof to establish the income of the deceased, the tribunal assessed the monthly income of the deceased at Rs.7,000/-, which is proper and correct. Further, the tribunal has rightly deducted 50% of the income towards his personal expenses, as he was a bachelor at the time of accident. The tribunal has also adopted appropriate multiplier of 18' considering the age of the deceased. Accordingly, loss of dependency would be Rs.10,58,400/- [Rs.7,000/- (income) + 40% (future prospects) - 50% (personal expenses) x 12 (months) x18 (multiplier)]. 19. Further, in the facts and circumstances of the case the compensation awarded by the tribunal towards loss of love and affection and transportation of dead body in a sum of Rs.1,00,000/- and compensation towards medical expenses in a sum of Rs.34,800/- is not disturbed. 20. Thus, the claimants would be entitled to the following modified compensation as follows: Towards loss of dependency including future prospects Rs.10,58,400/- Towards loss of love and affections and transportation of dead body Rs.1,00,000/- Towards medical expenses Rs.34,800/- TOTAL Rs.11,93,200/- 21. Thus, the claimants would be entitled for total compensation of Rs.11,93,200/- as against Rs.8,90,800/- awarded by the Tribunal with interest at 9% per annum from the date of petition till the date of realization. Accordingly, we proceed to pass the following: ORDER (i) The appeals are allowed in part. Thus, the claimants would be entitled for total compensation of Rs.11,93,200/- as against Rs.8,90,800/- awarded by the Tribunal with interest at 9% per annum from the date of petition till the date of realization. Accordingly, we proceed to pass the following: ORDER (i) The appeals are allowed in part. (ii) The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.11,93,200/- as against Rs.8,90,800/- awarded by the Tribunal with interest at the rate of 9% per annum from the date of petition till realization. (iii) Respondent Nos.1 and 2 being the owner and the insurer of the offending lorry are jointly and severally liable to pay the compensation and respondent No.2 being the insurer of the offending lorry is directed to deposit 60% of the compensation amount and the claimants are directed pay the rest of 40% of the compensation. (iv) The respondent, Insurance Company is directed to deposit the entire compensation amount before the tribunal within six weeks from the date of receipt of a copy of this order. (v) The Registry is directed to transmit the amount in deposit, if any, to the tribunal for disbursement forthwith. (vi) The apportionment, deposit and disbursement shall be as ordered by the tribunal in the same proportion. Draw the modified award accordingly.