Karnataka High Court
H.J. Girish And Anr. vs Smt. Sarojamma @ Jaitunbi And Ors. on 18 September, 1999
Equivalent citations: 2(2000)ACC122
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
JUDGMENT M.P. Chinnappa, J.
1. On 2.11.1988 at about 2.45 p.m. when deceased Nabisab was going by the Hero Majestic motor cycle bearing No. CNU 5537 near Nalavagal village cross, the tipper lorry bearing No. CNB 8151 driven by its driver rashly and negligently dashed against this moped as a result of which he succumbed to the injuries at the spot. Therefore, the wife and parents of the deceased lodged a claim in M.V.C. 1163/98 on the file of the Prl. Dist. Judge and MACT, Dharwad. The respondents resisted the claim on the ground that the deceased was responsible for the accident. But however after assessing the evidence, the Tribunal has rightly come to the conclusion that lorry was being driven in a rash and negligent manner when the accident occurred and further considering the age and also the income of the deceased, the Tribunal has come to the conclusion that the claimants are entitled for a total compensation in a sum of Rs. 2,41,000/-. Being aggrieved by this judgment dated 12.2.1998 the owner of the lorry and the Insurance Company preferred this appeal questioning the finding of the Tribunal regarding the rash and negligent driving of the lorry driver, quantum of compensation and also the rate of interest.
2. Heard.
3. The learned Counsel for the appellant has vehemently argued that the deceased who was riding his two-wheeler came and dashed against the rear side of the lorry, as a result of which this accident occurred. This argument is liable to be rejected in view of the spot mahazar which clearly discloses that the lorry ran over the motor-cycle which was being ridden by the deceased. It is true that on the rear side of the lorry there is a dent mark of the two-wheeler. It is not in dispute that the deceased was coming from the opposite direction. At that time, the driver of the lorry took a right turn and went across the road and dashed against the deceased who was coming on the left extreme side. That itself clearly indicates the manner in which the driver was driving the vehicle. Under those circumstances, the further argument of the learned Counsel for the appellant that there is some percentage of contributory negligence on the part of the deceased cannot be accepted. This contention was never raised in the written statement and for the first time this is argued before this Court.
4. The driver who was examined as R.W. 2 has stated that he has given complaint to the police but in actual fact, the complaint was lodged by some other person informing the police in regard to the manner in which the accident took place. The FIR is marked in this case which clearly discloses that the lorry was driven by the driver and it dashed against the motor-cycle. For the foregoing reasons the Tribunal has come to the conclusion that the accident was only due to the rash and negligent driving by the driver of the lorry which finding does not call for interference.
5. The learned Counsel for the appellant further argued that the compensation awarded is on the higher side which requires to be modified. It is not in dispute that the deceased was working in the factory and he was drawing a salary of Rs. 1,727/- and that he was paying Rs. 1,000/- p.m. towards family maintenance. Therefore, the Tribunal has rightly deducted Rs. 727/- of his income towards his personal expenses, thus arriving at a sum of Rs. 1,000/- as his contribution to the family he was aged about 24 years and his wife, the 1st claimant was aged 22 years. The claimants 2 and 3 are the parents who are aged 60 and 50 respectively. Therefore, it has correctly applied the multiplier of 18 and arrived at a total loss of dependency at Rs. 2,16,000/- to which he has added a sum of Rs. 10,000/- towards loss of expectation of life and a further sum of Rs. 10,000/- towards consortium, Rs. 5,000/- towards funeral expenses. Thus in all a sum of Rs. 2,41,000/- is awarded.
6. However, it is clear from the record that the claimants have restricted their claim in a sum of Rs. 1,50,000/-. Therefore, the learned Counsel for the appellants submitted that the Tribunal has committed an error in awarding more than Rs. 1,50,000/- as sought for by the claimants. Therefore, he submitted that, that portion of the order is liable to be modified. To substantiate his argument, he has placed reliance on a decision rendered by the Hon'ble Supreme Court in Adikanda Sethi (Dead) Through L.Rs. and Anr. v. Palani Swami Saran Transports and Anr. In that case, the Hon'ble Supreme Court after assessing the compensation has come to the conclusion that the claimants are entitled for a total compensation in a sum of Rs. 1,40,000/-. However, since the claim was limited to Rs. 1,00,000/- the Supreme Court held that the claimants were entitled to a compensation of Rs. 1,00,000/- with interest at 6%. In view of this decision, I hold that the claimants are entitled for a total compensation of Rs. 1,50,000/- as claimed by them with interest at 12% as awarded, by the Tribunal.
7. The learned Counsel for the respondents submitted that out of this compensation Rs. 90,000/- shall be paid to the widow and Rs. 60,000'/- shall be given to the mother with proportionate interest and the amount shall be deposited in the Bank as per the order of the Tribunal.
Ordered accordingly. The amount deposited by the Insurance Company shall be sent to the Tribunal.
The appeal is allowed in the terms as indicated.