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2022 DIGILAW 1340 (KAR)

New India Assurance Co. Ltd. v. Najeersab

2022-10-11

NATARAJ RANGASWAMY

body2022
JUDGMENT Nataraj Rangaswamy, J. - The Insurer being aggrieved by the judgment and award passed by the Addl. Senior Civil Judge and Addl. M.A.C.T., at Byadagi, in M.VC 459/2011 has filed this appeal challenging the finding regarding negligence as well as the quantum of compensation. 2. On 11.02.2011, a boy named Imran Khan, aged 18 years supposedly employed as a mason and a bar bending supervisor was traveling in an autorickshaw bearing registration No. KA-27/A-1770. At about, 8.30 p.m., a tractor-trailer bearing registration KA-25/T-7168 and 7169 which was driven from the opposite direction dashed against the autorickshaw. As a result, the said Imran Khan suffered serious injuries and died at the spot. The claimant being the father of the said Imran Khan filed a claim petition claiming compensation of Rs. 19 lakhs. 3. The claim petition was opposed by the driver and the owner of the tractor-trailer as well as the Insurer of the autorickshaw. The Insurer contended that the driver of the autorickshaw was not negligent and had not contributed to the accident and therefore, was not liable to indemnify the owner. It is also contended that the charge-sheet was filed against the driver of the tractor-trailer. The claimant was examined as PW-1 and a witness was examined as PW-2 and they got marked Ex.P.1 to Ex.P.9. The owner of the tractor-trailer was examined as RW-1 and an official of the Insurer was examined as RW-2 who marked EX.R.1 and Ex.R.2. 4. Based on the oral and documentary evidence, the Tribunal held that the drivers of both the vehicles were guilty of composite negligence. In so far as the loss of dependency is concerned, the Tribunal considered the evidence of PW-2 who deposed that the deceased was paid a sum of Rs. 300/-per day and held his income to be Rs. 9,000/-p.m. and after deducting half of his salary towards personal expenses, awarded the following compensation: 5. It directed the respondent No. 1 as well as the respondents 3, 4 to pay 50% each out of the compensation awarded. Being aggrieved by the same, the present appeal is filed. 6. Learned counsel for the Insurer submitted that the documents prepared by the police clearly indicate that the autorickshaw was driven on the left hand side of the road and therefore, the owner of the autorickshaw cannot be held guilty of composite negligence. Being aggrieved by the same, the present appeal is filed. 6. Learned counsel for the Insurer submitted that the documents prepared by the police clearly indicate that the autorickshaw was driven on the left hand side of the road and therefore, the owner of the autorickshaw cannot be held guilty of composite negligence. He submitted that the Tribunal mechanically held that both the drivers were guilty of composite negligence without considering the documents prepared by the police which indicated that it was the driver of the trailer-tractor who was guilty of negligence. He further contended that in stark contrast to the records prepared by the police, the respondent No. 1 contended that at the time of the accident, the tractor trailer was parked on the left side of the road for filling diesel. He submitted that the Tribunal committed an error in considering the income of the deceased at a sum of Rs. 9,000/-though the claimant himself mentioned that the monthly income of the deceased was a sum of Rs. 8,000/-. He therefore prayed that the compensation determined by the Tribunal as well as the liability imposed upon the Insurer be set aside. 7. The learned counsel for the claimants on the other hand contended that the deceased was a mason and a bar bender supervisor and therefore, was a skilled worker. He submitted that the evidence of PW-2 established that the deceased was earning Rs. 300 per day. He, therefore submitted that the Tribunal having regard to the age of the deceased must have factored the loss of future prospects which was not done and therefore, prays that the award passed by the Tribunal be left undisturbed. In so far as the liability fastened on the Insurer of the autorickshaw, the learned counsel contended that as per Ex.P.3 and Ex.P.4, it was clear that the accident was due to head on collision between the two vehicles and therefore, the Tribunal was right in fixing the liability on both of them to pay compensation. 8. I have considered the submissions made by the learned counsel for the parties. 9. The accident in question is not in dispute. It is also not in dispute that the deceased died in the accident. 8. I have considered the submissions made by the learned counsel for the parties. 9. The accident in question is not in dispute. It is also not in dispute that the deceased died in the accident. Though, the respondent No. 1 and 5 claimed that the vehicle was parked, the same is belied by the documents placed on record which indicate that both the vehicles had collided against each other. Thus, in the absence of any proof of evidence by the drivers of both the vehicles, the Tribunal was justified in holding that the drivers of both the vehicles were guilty of composite negligence . 10. In so far as compensation is concerned, PW-2 deposed that the deceased was engaged by him on daily wage basis and was paid Rs. 300/-per day. The claimant himself claimed that the deceased was earning Rs. 8,000/-p.m. Having regard to the fact that the deceased was a mason and a bar bending supervisor, the notional income as fixed by the Legal Services Authority cannot be made applicable to the deceased, since he was a skilled worker. Therefore, the income of Rs. 8000/-p.m. could be considered for the purpose of determining the loss of dependency. Since the Tribunal has not considered the loss of future prospects, the compensation awarded by the Tribunal cannot be termed to be just. However, since there is no appeal filed by the claimant seeking enhancement, it is inappropriate to do so in the appeal filed by the Insurer. 11. Though the Tribunal has awarded a sum of Rs. 75,000/-towards mental shock and agony, loss of estate and loss of consortium and Rs. 35,000/-under the conventional heads, this Court does not consider it appropriate to interfere with the same, as the compensation awarded by the Tribunal does not factor the loss of future prospects. Hence, this appeal lacks merit and is dismissed. The amount in deposit is ordered to be transferred to the Tribunal for further orders.