Karnataka High Court
Smt. D Nagarathnamma vs Gadilingappa S/O Thippanna on 25 July, 2014
Bench: N.K.Patil, B.Sreenivase Gowda
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JULY, 2014,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
M.F.A.NO. 4338 OF 2011 (MV)
Between:
1. Smt. D. Nagarathnamma,
W/o. Deceased D. Narayanadas,
Aged about 62 years.
2. D. Rajkumar,
S/o. Deceased D. Narayanadas,
Aged about 42 years.
3. Smt. D. Indira,
D/o. Deceased D. Narayanadas,
Aged about 39 years.
4. Smt. D.N. Shashikala,
D/o. Deceased D. Narayanadas,
Aged about 36 years.
5. Kum. D.N. Vijaya Nirmala,
D/o. Deceased D. Narayanadas,
Aged about 33 years.
6. Kum. D.N. Jyothi,
D/o. Deceased D. Narayanadas,
Aged about 30 years.
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7. Kum. D.N. Bhagya,
D/o. Deceased D. Narayanadas,
Aged about 27 years.
All are R/o. Rathna Nilaya,
I Ward, K.H.B. Colony,
Harapanahalli,
Davanagere district-570 001.
... Appellants
(By Shri. Mahesh.R.Uppin, Advocate)
And:
1. Gadilingappa,
S/o. Thippanna,
Aged about 32 years,
Driver of Tractor and Trailer
Bearing Reg. No.KA-35/T-1356 & 1357,
R/o. Pinjar Hegadal, Hagari Bommanahalli Taluk,
Bellary District-578 314.
2. T. Venkatasubba Reddy,
S/o. Veera Reddy,
Aged about 44 years,
Owner of Tractor and Trailer
Bearing Reg. No.KA-35/T-1356 & 1357,
R/o. Lakshmi Poultry Farm, Marabbehal,
Hagari Bommanahalli Taluk,
Bellary District-578 314.
3. The Manager,
New India Assurance Co., Ltd.,
Branch Office, Hospet,
Rep. through its Divisional Manager,
Divisional Office, New India Assurance Co., Ltd.,
Vidyarthi Bhavan Circle, C.G. Hospital Road,
Davanagere-570 001.
... Respondents
(By Shri. R. Jaiprakash, Advocate for R3;
Notice to R1 & R2 dispensed with v/o. dated 21/01/2014)
******
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This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 14/02/2011 passed in MVC
No.139/2009 on the file of the Senior Civil Judge & Motor
Accident Claims Tribunal-IX, Harapanahalli, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
This MFA coming on for Admission, this day,
N.K. PATIL. J., delivered the following:
JUDGMENT
This appeal by the claimants is directed against the judgment and award dated 14th February 2011, passed in MVC No.139/2009, by the Senior Civil Judge & Motor Accident Claims Tribunal-IX, Harapanahalli, (for short, 'Tribunal') for enhancement of compensation on the ground that, the compensation of `2,72,000/- awarded in favour of the claimants, after deducting 60% towards contributory negligence fixed on the part of the deceased, as against their claim for `50,00,000/-, is inadequate and fixing 60% contributory negligence is liable to be set aside or at least modified.
2. The facts of the case in brief as stated in the claim petition are that, the claimants are the wife and 4 children of deceased D. Narayanadas. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 10:00 P.M., on 29-12- 2006, when the deceased D. Narayanadas was travelling in his own Maruthi Car bearing Registration No.KA-04/P-1039 from Hospet to Harapanahalli via Hagari Bommanahalli, near Lakshmi Poultry farm on Hospet- Hagari Bommanahalli Road, he met with an accident, on account of rash and negligent driving by the driver of Tractor and Trailer bearing Registration No.KA-35/T-1356 and 1357. Due to the impact, the deceased sustained severe bodily injuries and immediately was taken to Hagari Bommanahalli Government Hospital and thereafter shifted to District Hospital, Davangere, where he was declared as dead.
3. It is the case of the claimants/appellants that, the deceased was aged about 67 years and an Ex- M.L.A. of Harapanahalli constituency and was also Former Minister, earning a sum of `50,000/- per month and hale and healthy prior to the accident. On account 5 of the untimely and unnatural death of the deceased D. Narayanadas in the road traffic accident, the wife and children have lost the love and affection, social and financial security and they are also deprived of the moral support and therefore, they have to be compensated reasonably.
4. On account of the death of the deceased D. Narayanadas in the road traffic accident, the appellants filed the claim petition before the Tribunal, seeking compensation of `50,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 14th February, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `2,72,000/-, after deducting 60% towards contributory negligence fixed on the part of the deceased, with 9% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded 6 by the Tribunal and also aggrieved by the contributory negligence fixed at 60% on the part of the deceased, the appellants are in appeal before this Court, seeking enhancement of compensation and also to set aside the contributory negligence of 60% fixed on the part of the deceased or at least to modify the percentage of contributory negligence fixed on the part of the deceased.
5. We have gone through the grounds urged in the memorandum of appeal and heard learned counsel appearing for appellants and learned counsel appearing for third respondent/Insurer, for considerable length of time.
6. Shri Mahesh R. Uppin, learned counsel appearing for appellants, at the outset submitted that the Tribunal grossly erred in assessing the income of the deceased at only `10,000/- per month towards pension and `4,000/- per month towards supervision of the agricultural lands. The same is on the lower side and liable to be re-assessed as the deceased was aged 7 about 67 years and a Member of Karnataka Legislative Assembly elected to 5th, 6th, and 10th Legislative Assembly from Harapanahalli constituency, earning `50,000/- per month in addition to `10,000/- towards pension. To substantiate the same, the claimants have produced Ex.P14, the Certificate issued by the Secretary of the State Government stating the deceased was getting monthly pension of `10,000/-. He was also an Ex.MLA and Ex.Minister of State of Karnataka and had also owned large extent of agricultural land as per the record of rights produced at Exs.P19 to P21. Therefore, it is the case of appellants that a sum of `4,000/- per month assessed as supervision of agricultural lands is also on the lower side. Therefore, he submitted that the monthly income of the deceased may be re-assessed and reasonable compensation be awarded towards loss of dependency as also under conventional heads, by modifying the impugned judgment and award passed by Tribunal.
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Regarding contributory negligence fixed at 60% on the part of the deceased, he vehemently submitted that the Tribunal grossly erred in fixing 60% contributory negligence on the part of the deceased, contrary to the material available on file. To substantiate the same, he relied upon the documentary evidence at Ex.P3 - FIR, wherein it is stated that the driver of the Tractor and Trailer suddenly took a left turn due to which the trolley of the said Tractor suddenly came towards extreme right side and hit against the Car, which in fact has also not been specifically denied by the other side during the cross examination of PW3. This is clearly evidence from the specific observation made by the Tribunal at internal page 19, paragraph 25 of its judgment that, the specific assertions of PW3 and contents of Ex.P3, FIR, that the driver of Tractor and Trailer was at a high speed and suddenly took left turn of the said Tractor at the said spot of accident and due to which the trolley went to the right side of the road and hit against the said Car, has not been denied 9 during his cross examination by the other side. Further, he submitted that the Tribunal has specifically observed that, it is common sense that always if Tractor moves either on the right side or left side, then the trolley attached to it automatically moves towards opposite direction and the driver of such Tractor will not be having any control over the trolley when he takes the turn on either side. It is for the driver of the Tractor to take all precautions while taking left or right turn to see whether any vehicle is behind the said trolley so as to avoid hitting of edges of the said trolley to such vehicles coming behind. Therefore, he submitted that the driver of the Tractor and Trailer contributed more to the occurrence of accident and hence, the contributory negligence fixed at 60% on the part of the deceased is liable to be set aside or reduced substantially, to meet the ends of justice, by modifying the impugned judgment and award passed by Tribunal.
To substantiate the said submission further, he strongly relied upon the decisions of the Hon'ble Apex 10 Court in the case of U.P. State Road Transport Corporation Vs. Rani Srivastava and others reported in 2006 ACJ 1864 and the Division Bench of this Court in the case of North East Karnataka Road Transport Corporation Vs. Smt. Vijayalaxmi and others reported in ILR 2011 Kar.4845 and drew our specific attention to paragraphs 12 of the judgment of the Apex Court and paragraph 24 of the Division bench decision of this Court and submitted that the entire burden is on the part of the Insurer to take the plea in their statement of objections itself and in the instant case, the Insurer has not pleaded the contributory negligence in their written statement filed. Therefore, he submitted that, in view of the ratio of law laid down in the aforesaid decisions, the entire liability may be fastened on the Insurer of the Tractor and Trailer and the impugned judgment and award passed by Tribunal be modified accordingly .
7. As against this, Shri. R. Jaiprakash, learned counsel appearing for Insurer sought to justify the 11 impugned judgment and award stating that the same is passed after due appreciation of the oral and documentary evidence available on file and other material available and hence, interference is uncalled for. Further, he submitted that the Tribunal, after critical evaluation of the entire material on record, has recorded a specific finding of fact at paragraph 33 of its judgment that the drivers of both the vehicles, i.e. the driver of Car and the driver of the Tractor and Trailer have contributed to the occurrence of accident in the ratio of 60:40 and observed that, having regard to the manner in which the said Car was being driven, it found that greater degree of negligence is attributable to the driver of Car as compared to the negligence on the part of the driver of the Tractor and Trailer. The said finding is given by Tribunal on the basis that the driver of the said Tractor and Trailer was ahead of the said Car and the said accident occurred at 8 P.M. and therefore, he may not be aware about the Car coming behind his Tractor and Trailer on the other hand, when the driver 12 of the said Car was in a better position to see the on- going Tractor and Trailer, that too, in a high speed, and in a rash and negligent manner, he could have avoided the said accident had he taken his Car towards extreme right side of the road or he would have kept sufficient distance between his Car and the Tractor and Trailer. He further submitted that the deposition of the wife of deceased, i.e. PW1 that the driver of the Car was rash and negligent in driving the Car and dashed against the Tractor and Trailer coupled with the evidence of PW3 and also the oral evidence of RW2, Senior Motor vehicle Inspector clearly establish that the accident took place due to rash and negligent driving by the driver of both vehicles and the driver of the Car contributed more to the occurrence of accident. Therefore, he submitted that the contributory negligence fixed in the ratio of 60:40 on the part of the deceased and the driver of Tractor and Trailer, respectively, is just and proper and does not call for interference.
13
Regarding quantum of compensation, he vehemently submitted that the income assessed by Tribunal is just and proper considering the age, avocation and also the documentary evidence produced by the claimants and hence, interference in the same is uncalled for. Further, he submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, and after discussing the issue in detail in paragraph 27 of its judgment has arrived at just and reasonable income of the deceased at `1,68,000/- per annum and rightly deducted 1/3rd towards the personal and living expenses of the deceased and adopted the multiplier of '5', considering the age of the deceased and awarded reasonable compensation towards loss of dependency and also conventional heads. Hence, interference in the same is also uncalled for.
8. After hearing learned counsel appearing for appellant and learned counsel appearing for third respondent/Insurer of Tractor and Trailer after careful 14 perusal of the judgment and award passed by the Tribunal including the original records placed before us, the points that arise for our consideration in this appeal are, 1] Whether the Tribunal is justified in fixing contributory negligence at 60% on the part of the deceased and 40% on the part of the driver of Tractor and Trailer?
2] Whether the quantum of
compensation awarded by Tribunal is
just and reasonable?
9. Re-Point 1]: After perusal of the entire
material placed before us, it is seen that, occurrence of accident on 29-12-2006 at about 10:00 P.M and the resultant death of deceased D. Narayanadas are not in dispute. It is also not in dispute that the accident has occurred between the two vehicles, i.e. the Maruthi Car bearing Registration No.KA-04/P-1039, owned by the deceased D. Narayanadas and driven by its driver and 15 the Tractor and Trailer bearing Registration No.KA- 35/T-1356 and 1357, insured with the third respondent/Insurer.
The Tribunal, after critical evaluation of the oral evidence of PWs 1 to 3 and RWs 1 to 4 and documentary evidence at Exs.P1 to P23 and Exs.R1 to R22, has elaborately discussed the negligence on the part of the drivers of both the vehicles at paragraphs 19 to 33 of its judgment. The Tribunal has placed heavy reliance on the Motor Vehicle reports of both the vehicles at Ex.P23 and Ex.R19. In the said documentary evidence, the damage caused to the Tractor and Trailer is shown as "Rear Rt. Body little dented(Trailer)" and the damages caused to the Car are shown as "front glass wind screen broken, left side door and front and back dented, left portion of window glass broken, and top dented". On perusal of the said documents, coupled with the seizure panchanama of both the said vehicles, the Tribunal observed that major left side portion of entire Car is severely damaged due to 16 the impact between the two vehicles and the pieces of glass have fallen on the seats and left side of the Car is fully damaged.
10. Further, it can be seen that, the wife of deceased who was also travelling on the said Car on the said date and time has categorically admitted that, the driver of the said Car was driving the Car at a high speed, in a rash and negligent manner and dashed against the on-going Tractor and Trailer and thereby caused the accident. The relevant portion of the evidence of PW1 in Kannada reads as under:
"D ¢£À ¸ÀzÀj £ÀªÀÄä PÁj£À ZÁ®PÀ ²ªÀÅ EªÀ£ÀÄ D PÁgÀ£ÀÄß Cwà ªÉÃUÀªÁV ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ £ÀqɹPÉÆAqÀÄ ªÀÄÄAzÉ ºÉÇÃUÀÄwÛzÀÝAvÀºÀ ªÁºÀ£ÀPÉÌ rQÌ ªÀiÁr C¥ÀWÁvÀ¥Àr¹zÀÝ JAzÀÄ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸Àj."
11. Further, PW3, Kotreshi, an independent witness, who was travelling in the Tractor and Trailer, who has filed his affidavit as examination-in-chief, has 17 deposed that at the time of the accident, he was travelling in the said Tractor and Trailer, which caused the said accident and it occurred due to rash and negligent driving by the driver of the said Tractor and Trailer as he suddenly took a left turn while driving the said vehicle in high speed, due to which the trolley attached to the said Tractor, dashed against the front portion of the Car, which was behind the said Tractor and Trailer. In his cross examination, PW3 has deposed that at the time of the said accident, the said Car was in a moderate speed, but Tractor and Trailer was in a high speed and it was not parked by the side of road. He further deposed that he came to know about the said accident when the said Car after hitting Trailer, further went ahead of the said Tractor and stopped at a reasonable distance. The relevant portion of the deposition of PW3, in his cross examination reads thus:
"After the said accident, the said Car went in front of our Tractor at a reasonable 18 distance and stopped there and thereafter I came to know that the said accident had occurred."
12. Further, RW2, the Senior Motor vehicle Inspector, who conducted motor vehicle inspection of both the offending vehicles and issued the motor vehicle report, in his evidence stated that, the damages caused to the said vehicles were possible only if the vehicle coming from hind side dashed against the on-going vehicle in a high speed. His deposition in the said criminal case is marked as Ex.R17. Further, PW3, Kotreshi, in his cross examination has admitted that the damages caused to the vehicle is possible only if the said Car dashed against the left rear portion of the said Tractor and Trailer. The relevant portion of the cross- examination of PW3 reads thus:
"It is true to suggest that the said Car dashed against the back right portion of the said Trailer attached to the Tractor. It is true to suggest that only if the said Car had dashed 19 against the back right corner portion of the said Trailer, then only such damages were possible. The said damage caused to the Trailer was due to the dashing of the said Car to the said back right portion. It is true to suggest that if really the said accident occurred as stated by me then necessarily the said Car could have sustained damages towards its front left portion. It is true to suggest that normally if any Car hit the right back portion of any Trailer, in high speed then there will be possibility of damaging half portion of the left portion of the Car."
13. If the deposition of PW3, who is also a professional Tractor driver in his examination in chief as also cross examination is read together with the deposition of Motor vehicle Inspector RW2 and also deposition marked at Ex.R17, it could be said that the accident took place due to dashing of the said Car from the hind side of the Tractor and Trailer.
14. Admittedly, the width of the State High Way at the said place of accident is 18 ft. as is evident from 20 the rough sketch got marked at Ex.R10. Even the sketch map shows that the place of accident was at middle of the said road i.e. 9 ft. from both the edges of the said tar road. The sketch map is not disputed by either parties. Admittedly, the Tractor and Trailer is a slow moving vehicle as compared to othe vehicles i.e. Car, Jeep, Truck, Bus etc. The place of accident is Harihar-Hospet State Highway. The driver of Tractor and Trailer was expected to keep his vehicle to the extreme left side of the road so as to permit the other fast moving vehicles to over take the same or vehicle coming from opposite direction to pass without any hurdles.
15. Further, the contents of Ex.P3, FIR, to the effect that, the driver of the said Tractor and Trailer suddenly took a left turn, due to which the trolley of the said Tractor suddenly came towards extreme right side and hit against the said Car and the same has not been specifically denied, instead, the deposition by PW3, Kotreshi, an inmate of Tractor and Trailer who is also a 21 professional driver of Tractor and Trailer makes it clear that the driver of Tractor and Trailer was at a high speed and in a rash and negligent manner and without giving any signal or indication whatsoever, suddenly took a left turn, due to which the trolley went to the right side of the road and hit against the said Car. The same is not denied during his cross examination by the other side. Further, it is common sense and cannot be disputed that, always if a Tractor moves either on the right side or left side, then the trolley attached to it automatically moves towards opposite direction and the driver of such Tractor will not be having any control over the trolley when he takes the turn on either side. It is for the driver of the Tractor to take all precautions while taking left or right turn in order to see whether any vehicle is behind the said trolley so as to avoid hitting of edges of the said trolley to such vehicles coming behind and if at all, he has to take the turn, he can do so only after giving proper signal/indication well 22 ahead. Admittedly, this exercise is not being done by the driver of the Tractor and Trailer.
16. Further, as rightly observed by the Tribunal, the driver of Tractor and Trailer, while driving on the Highway, is supposed to move only on the left side of the road as it is a slow moving vehicle so as to give way to the other fast moving vehicles. The accident has admittedly occurred at the middle of the tar road on the State High Way and it is not the case of the Insurer of the Tractor and Trailer that the Tractor and Trailer was on the extreme left side of the highway. Further, whenever the driver of a Tractor and Trailer takes a turn, he is supposed to give proper indication or signal before taking a turn so as to enable the vehicles coming from behind to take suitable precaution. Admittedly, the said exercise is also not being done by the driver of the Tractor and Trailer. Further, as per the deposition of the inmate of Tractor and Trailer, i.e. PW3, Kotreshi, the driver of the Tractor and Trailer was also at a high speed and took left turn suddenly. Therefore, the 23 driver of the Tractor and Trailer was also equally responsible for the cause of accident.
17. Further, it can be seen that, the driver of the Car was at a high speed and rash and negligent manner dashed against the right hind portion of the Tractor and Trailer. The same is established by the oral evidence of PW1, who is none other the wife of the deceased. In addition, the damages caused to both the vehicles also make it amply clear that the accident has occurred on account of rash and negligent driving by the drivers of both the vehicles. But, the observation of the Tribunal that the driver of the Car contributed a greater degree of negligence for the cause of accident is liable to be set aside as, in our view, the drivers of both the vehicles contributed equally to the occurrence of accident.
18. Therefore, after critical evaluation and re- appreciation of the relevant oral and documentary evidence available on file, we are of the view that, the reasoning given by Tribunal for fixing contributory negligence at 60% on the part of the deceased cannot be 24 accepted and the same is liable to be modified, considering the nature of damage caused to both the vehicles, the impact of accident, resulting in death of deceased, the deposition of PW1, wife of deceased and particularly deposition of PW3, Kotreshi, both in his examination in chief and also cross examination and also the IMV reports at Exs.P23 and R19. Accordingly, in the light of the discussion made above, we re-fix the contributory negligence on the part of the driver of the Car at 50% and on the part of the driver of the Tractor and Trailer at 50%, to meet the ends of justice and accordingly, answer the point No.1 in the 'Negative'.
19. So far as the judgments of the Apex Court and this Court relied upon by the learned counsel appearing for claimants is concerned, it can be seen that there is no quarrel or second view regarding the well settled law laid down in the said judgments but unfortunately, the facts and circumstances of the said case are not relevant to the facts and circumstances of 25 the case on hand. Therefore, the said judgments are of no avail to the claimants in this appeal.
20. Re-point No.2: So far as quantum of compensation awarded by Tribunal is concerned, it emerges that, occurrence of accident and the resultant death of deceased D. Narayanadas are not in dispute. It is also not in dispute that the deceased was aged about 67 years and an Ex-MLA and Ex-Minister, social worker and owned large extent of agricultural lands. He was also a member of Karnataka Legislative Assembly elected to 5th, 6th and 10th Legislative Assembly from Harapanhalli Constituency of Bellary District. It is stated that he was earning a sum of `50,000/- per month. But, to substantiate the same, the appellants have not produced any credible documentary evidence, except making oral submission and producing the Certificate issued by the Secretary of State Government at Ex.P14, stating that the deceased was getting monthly pension of `10,000/-. As rightly observed and not disputed by the other side, the income from 26 agricultural lands would continue to come even after the death of deceased. But, the supervisory benefits is lost on account of the death of the deceased. Therefore, the Tribunal has taken the income of the deceased towards supervision of agricultural lands at `4,000/- per month. The same is on the lower side and needs to be re-assessed. The accident is of the year 2006. It is to be seen that the deceased was aged about 67 years and had a versatile personality and a political leader, elected several times and serving the people and also had a rich experience in looking after the agricultural lands. Therefore, having regard to the age, number of avocations, number of dependents, also the year of accident and also his status, we re-assess the income of the deceased at `2,00,000/- per annum, to meet the ends of justice. Further, it can be seen that, the Tribunal has rightly deducted 1/3rd towards the personal and living expenses of deceased even though the dependents are seven in number, i.e. the wife and six children as all of them are major. Accordingly, as 27 per the decision of the Hon'ble Supreme Court in Sarla Verma's Case (2009 ACJ 1298), if 1/3rd (i.e. `66,666/-) is deducted from `2,00,000/- towards his personal expenses, the net income would be `1,33,334/- per annum. The deceased was aged about 67 years as on the date of accident. Therefore, the proper multiplier applicable is '5' as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to `6,66,670/- (i.e. `1,33,334/- x '5') as against `5,60,000/- awarded by Tribunal.
21. Further, so far as compensation awarded towards conventional heads is concerned, it can be seen that the Tribunal has awarded compensation of `20,000/- towards loss of estate; `50,000/- towards loss of love and affection as there are seven claimants; `30,000/- towards transportation of dead body and funeral expenses and `20,000/- towards loss of consortium. Having regard to the facts and circumstances of the case coupled with the number of 28 dependents and the status of the deceased, we find that the compensation awarded by Tribunal under conventional heads is just and proper and does not call for interference.
22. Further, regarding the rate of interest at 9% awarded by Tribunal is concerned, considering the facts and circumstances of the case and the number of dependents being seven and also the fact that we have fixed 50% contributory negligence on the part of the deceased, we do not propose to interfere in the rate of interest awarded by Tribunal at 9% per annum, to meet the ends of justice. Accordingly, we confirm the same.
23. Thus, the total compensation would work out to `7,86,670/- as against total compensation of `6,80,000/- or `2,72,000/- awarded by Tribunal, after deducting 60% towards contributory negligence fixed on deceased.
24. Now, in view of the discussion made above and our finding on point No.1, as we have modified the contributory negligence in the ratio of 50:50, i.e. 50% on 29 the part of the deceased and 50% on the part of the insurer of Tractor and Trailer, the claimants are held entitled to only 50% of total compensation of `7,86,670/-, which works out to `3,93,335/- as against `2,72,000/- awarded by Tribunal. Thus, there would be enhancement of compensation by a sum of `1,21,335/- with interest at 9% per annum from the date of petition till the date of realization and the Insurer is liable to deposit only 50% of the total compensation, i.e. `7,86,670/-.
25. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 14th February 2011, passed in MVC No.139/2009, by the Senior Civil Judge & Motor Accident Claims Tribunal-IX, Harapanahalli, is hereby modified, awarding additional compensation of a sum of `1,21,335/- with interest at 9% per annum, from the date of petition till the date of realization. 30
In view of our finding and reasoning on point No.1, the Insurance Company is liable to deposit 50% of the total compensation, i.e. `3,93,335/-;
The apportionment and the manner of disbursement ordered by Tribunal in respect of the compensation awarded by it remains unaltered;
The Insurance Company is directed to deposit the enhanced compensation of `1,21,335/-, with interest thereon at 9% per annum, within three weeks from the date of receipt of copy of the judgment.
Immediately on such deposit by the Insurance Company, out of the enhancement compensation of a sum of `1,21,335/-, a sum of `1,00,000/- with proportionate interest shall be invested in the name of first appellant - wife of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of five years, renewable by five years, with liberty reserved to her to withdraw the periodical interest. 31
A sum of `21,335/- with proportionate interest shall be released in favour of the appellant No.1, immediately;
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*