G. Narendra, J.@mdashThe above appeal is filed praying to call for the records in MVC No. 215/2012 on the file of the Hon''ble FTC-II and Additional MACT at Mysore, to set aside or modify the judgment and award passed by the Hon''ble FTC-II and Addl. MACT Dt. 28.07.2012 and award the compensation as claimed in the claim petition and to grant such other reliefs as this Hon''ble Court deems fit in the facts and circumstances of the case.
2. The facts of the case are as follows:--
"The appellants/claimants before this Court are the parents of one Karthik, who met with an accident on 18.12.2011 and due to the grievous injuries sustained in the accident with the offending vehicle, succumbed to injuries and was declared dead on 28.12.2011."
3. It is the finding of the Tribunal that on the night of 18.12.2011 at about 8.30 p.m. when the deceased Karthik was riding bike bearing No. KA 01 EK 8063 on Mysore - Hunsur high way and when he had reached the outskirts of the Mysore City, the offending vehicle Maruthi Omni van (Regn. No. KA 09 P 5484) took a sudden right turn from south to north to go to the highway motel and the deceased who was riding from west to east crashed against left front door, sustained grievous injuries on his head, leg and body, was admitted to B.M. Hospital in an unconscious state, thereafter slipped into Coma and after few days of treatment, he was shifted to Annapoorna hospital at Mysore itself where he breathed his last on 28.12.2011.
4. The owner of the offending vehicle lodged a compliant and registered a FIR accusing the deceased for having caused the accident by driving in a rash and negligent manner. The first appellant, father of the deceased, lodged an another complaint on the next date accusing the offending vehicle and his driver for having caused the accident due to his rashness and negligence.
5. The appellants thereafter preferred their claim petition before the Tribunal arraying the driver, owner and insurer of the offending vehicle as respondents and claimed a sum of Rs. 35,00,000/- under various heads. It was also specifically pleaded that the appellants had incurred medical expenses to the tune of Rs. 2,00,000/- and further a sum of Rs. 50,000/- to perform the last rights and ceremony of their only son. In the claim petition the appellants had asserted and declared their ages as 47 and 36 years respectively. It was also averred that the deceased was their only child and that both the appellants had studied upto SSLC and they had dreams of providing higher and quality education to their only deceased son and that he had completed his II P.U. exams and was awaiting results. They further contended that their son was aged about 19 years and possessed a valid driving licence and now by the untimely death of their son, their hopes and dreams have been nipped in the bud. It is their specific case that they had made financial arrangements to enable their only son to pursue higher studies, but due to the rash and negligent act of respondent No. 1, their hopes have been scuttled and they have been rendered orphans as they are unable to imagine their life without their only son. They have further pleaded that the loss of their only son has caused immense agony and shock as the loss has shaken the very foundation of their life.
6. The Tribunal ordered notices to the owner, driver and the insurer. Respondents 1 and 2, who are the driver and owner of the offending vehicle, chose not to contest the claim of the appellants and remained ex parte. The third respondent-insurer entered appearance and contested the claim. The third respondent had averred that the facts pleaded about the claimants name, age, address, occupation are all not within their knowledge and the same are merely denied. But the Insurer has admitted the accident and its liability under the Insurance policy issued to the second respondent. Though it was contended by the third respondent/Insurer that the deceased did not possess the driving licence, the same has been produced and marked as Annexure-P8.
7. On these pleadings the Tribunal proceeded to frame the issue as, whether the petitioners/claimants prove that the deceased died on account of the accident on 18.12.2011 on Hunsur Road near Roost Hotel Highway-18, due to the rash and negligent driving by the offending vehicle?
8. The Tribunal while deciding the issue as to the cause of accident has observed that the road where the accident occurred is a double road with a divider and that the driver of the car had already crossed the divider and gone to the middle of the carriage way reserved for vehicles traveling from west to east. The motor cycle which was traveling from west to east dashed against the left door of the offending vehicle and it was argued by the third respondent that had the deceased ridden his motor cycle on the extreme left side of the carriage way, then the accident would not have occurred. The Tribunal after appreciating the evidence concluded that if the driver after negotiating the U-turn should have stopped the vehicle to give way to the vehicles proceeding on the northern side of the road i.e. west to east direction. The Tribunal further concludes that the accident must have occurred because the offending vehicle must have taken U-turn suddenly without observing the oncoming vehicle. It further concludes that it is only because of this that the rider of the motor had no much time to avoid the accident as the car had already taken the turn. This conclusion is based on the evidence of damage to the offending vehicle and hence the Tribunal holds that it is the case of contributory negligence and has apportioned contributory negligence at the rate of 80% on the driver of the offending vehicle and 20% on the deceased. One another factor which went in the Tribunal accepting the rash and negligent driving of the offending vehicle is the registration of the FIR and prosecution of the driver.
9. The appellants would vehemently contend that the finding of the Tribunal attributing contributory negligence to the deceased is wholly baseless as the Trial Court, having concluded that the accident has been caused due to the sudden U turn taken by the offending vehicle, erred in attributing contributory negligence to the deceased.
10. The first appellant examined himself as P.W. 1 and he has deposed that his son was riding the motor cycle on the Hunsur-Mysore high way and he was riding the same in a careful manner and near the junction the offending vehicle took and sharp right turn without waiting or noticing the on coming vehicles and consequently caused the deceased to crash into the left front door of the Maruthi Omni vehicle which ultimately resulted in his untimely demise. This is borne out by Ex. P4, the sketch prepared by the police. A perusal of Ex. P4 would demonstrate that the road is a highway with a divider in the middle dividing the road into two carriage ways. One carriage way goes from west to east i.e. towards Mysore City and the other half of the carriage way goes from east to west for vehicles exiting out of Mysore City. The sketch shows that the offending vehicle has taken a right turn and entered the portion of the carriage way going west to east. A further scrutiny of the Ex. P4 (sketch) would show that the point of collusion is beyond the divider and reserved for vehicles moving from west to east. The offending vehicle which was traveling from east to west had suddenly taken a right turn towards north. The point of collusion would show that the offending vehicle has neither stopped and proceeded, but has taken a sudden right turn without giving way to the approaching vehicles and this has caused the accident. In view of the above discussion, we are of the opinion that the finding of contributory negligence is contrary to the material on record as neither the driver nor owner of the offending vehicle have stepped in to depose otherwise or in support of the contention taken by the insurer. In the light of this fact and the above discussion, we set aside the finding of contributory negligence and hold that the offending vehicle alone is responsible for the accident.
11. The appellants secondly contended that Tribunal has not appropriately considered and granted the expenses incurred by the appellants during the hospitalization and prior to the demise of their only son. The appellants had produced 26 prescriptions and 44 medical bills, but the Tribunal has granted only a meager sum of Rs. 1,86,654/- and ought to have granted the claimed sum of Rs. 2,00,000/-.
12. We find that the Tribunal has adopted a careful approach and has awarded only the sum which is supported by medical bills. Though the Tribunal was correct in awarding only the sum covered under the bills, could have also made an attempt to appreciate the claim of the appellants for the sum of Rs. 2,00,000/-. There is not much of the difference of the sum claimed and the sum awarded. There is hardly a 10% difference. It is possible that the appellants could have expended more than the sums supported by the bills and accordingly, we deem it fit to grant the sum of Rs. 2,00,000/- as claimed in the petition.
13. It is the vexed issue in this appeal and which is most vehemently argued and put forth by the appellants'' counsel is the approach of the Tribunal in considering the issue of loss of dependency. Not only under that head but also under the conventional heads, the Tribunal has awarded meager sums.
14. A perusal of paragraphs 15, 16 and 17 of the impugned judgment and award relates to the discussion and reasoning by the Tribunal for awarding the compensation under various heads. A reading of the same would reveal that the Tribunal has adopted rather pedantic and dogmatic approach. It is appreciable that the Tribunal has relied upon various pronouncements by the Hon''ble Apex Court, particularly
15. The Tribunal has considered the deceased as a non-earning member in view of the fact that the deceased is a student. Though the same is correct the Tribunal was not at all alive to the propensity of the deceased and his future potentials to contribute to the family and support his parents being their only child.
16. The Tribunal grossly erred in taking the nominal income at the rate of Rs. 15,000/- p.a. Our view is that the same is grossly erroneous and is supported by the judgment rendered by the Apex Court in the case of
17. The Tribunal erred in arriving at the amount without considering the issues regarding the paternity or capability of the deceased to secure gainful employment with a hand sum salary. Ex. P7 would go to demonstrate that the deceased has acquired skills to have himself gainfully employed. The deceased was also a major and one can reasonably expect such a person to pursue and seek employment and being the only son he can reasonably be expected to contribute to the family. The fact that the deceased had acquired a driving licence would also demonstrate his attitude and industriousness. The Tribunal keeping all these factors in mind ought to have considered the deceased as a person with fixed income or at least as a person who is self employed and hence we are inclined to set aside the finding that the deceased is a non-earning member. The Hon''ble Apex Court in the judgment rendered in
"(11) We have considered the respective arguments. All though the legal jurisprudence developed in the country in the last 5 decades is somewhat precedent-centric, the judgments which have bearing and socio-economic conditions of the citizens and issues relating to the compensation payable to the victims of motor accidents, those who are deprived of the land and similar matters needs to be frequently revisited keeping in view the fast-changing societal values, the effect of globalization on the economy of the nation and their impact on the life of the people".
The Hon''ble Apex Court has further in paragraph 11 has held that since the law laid down in Santhosh Devi''s case has actually intended to follow the principle in the case of salaried person as laid down in Sarla Verma''s case and to make it applicable also to self-employed and persons on fixed wages.
18. Keeping the above dictum in mind we now consider whether the Tribunal was right in restricting itself to the notional income of Rs. 15,000/- p.a. as stipulated under the M.V. Act?
19. We are unable to accept the finding of the Tribunal with regard to the reliance on the notional income of Rs. 15,000/- per annum as fixed under the Act. The Tribunal ought to have been alive to the evidence on record which point towards the potency of the deceased to earn a fair sum as salary and ought to have considered the deceased as a salaried person or as an employee with fixed income as we propose to consider hereunder.
20. In view of the material on record, particularly Exs. P7 and P8, we are of the opinion that the deceased would have secured regular employment at least as an accountant in any commercial or trading establishment. In view of the fact that the accident has occurred in the fag end of 2011, we can safely presume that the deceased would have earned at least a sum of Rs. 6,000/- per month. The Hon''ble Apex court in the case of Rajesh and others itself relying on Santhosh Devi''s case has held that even self-employed persons and persons with fixed wages are entitled for computation of future income. Further, the Hon''ble Court in the judgment stated supra has held that the underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities in such matters and attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/dependents should not face the vagaries of life on account of discontinuance of income earned by the victim. It further held that the Court should award proper compensation irrespective of the claim and if required even in excess of the claim.
21. The appellants submit that the Tribunal erred in applying the multiplier of 14 by taking the age of the younger claimant as 44 years. The Tribunal failed to see that the age of the second appellant is described as 37 years and it is argued that no material to prove the contrary is placed on record by the respondents. P.W. 1 has admitted that he does not know the age of his wife. The appellants explained in the further deposition of P.W. 1 that his wife would be 4 to 5 years younger to him as a mere opinion and hence the multiplier is taken as 15. We also accept the contention of the appellants counsel granted under the conventional heads is also meager.
22. In view of the above discussion we take the potential salary of the deceased as Rs. 6,000/- p.m. and in the instant case the compensation has to be assessed as follows:--
The enhanced amount will carry interest at the rate of 8% p.a. from the date of this judgment and order till realization.
23. In the result, we pass the following:
ORDER
i) The appeal is allowed;
ii) The impugned judgment and award of the Tribunal is modified;
iii) The appellants/claimants shall be entitled to a total compensation of Rs. 10,40,624/- with interest at the rate of 8% on the enhanced amount of Rs. 7,30,000/- from the date of petition till realisation.
iv) Respondent No. 3, the insurance company, is directed to deposit the above amount within three weeks from the date of receipt of a copy of this judgment and award. Out of the same, a sum of Rs. 5,00,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized Bank in the name of the second appellant/mother for a period of 10 years and she is entitled to withdraw the periodical interest accrued on it. Out of the remaining amount of Rs. 2,30,000/-, a sum of Rs. 1,50,000/- with proportionate interest shall be kept in fixed in any Nationalized Bank in the name of the first appellant/father for a period of 5 years with liberty to withdraw periodical interest. Out of the remaining amount a sum of Rs. 50,000/- with proportionate interest shall be paid to the first appellant and the remaining sum with proportionate interest shall be paid to the second appellant."
Ordered accordingly.
There is no order as to costs.
