(Prayer: This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 15.06.2016 passed in MVC No.275/2011 on the file of the Senior Civil Judge, Member, MACT, Kundapura, awarding a compensation of Rs.10,37,000/- with interest @ 6% P.A. from 1.7.2013 on the date when Respondent No.3 is impleaded by the petitioner till the date of deposit with the tribunal.)
1. The captioned appeal is filed by the Insurance Company questioning the liability as well as quantum determined by the Tribunal in MVC.No.275/2011.
2. The claimants- respondents 1 and 2 herein filed the claim petition for having lost one Madukara Poojary in a road traffic accident dated 14.01.2011. The appellants are the parents of the deceased. The appellants contended in the claim petition that their son Madukara Poojary was proceeding on a motor cycle bearing Regn.No.KA-20-J-4617 towards Chittur. At that juncture, the driver of the offending Mahindra Autorickshaw bearing Regn.No.KA-20-B-6614 came from Chittur side towards Maranakatte side in a rash and negligent manner and while over taking Maruthi Omni Car came on extreme right side of the road and dashed against the motor bike on which the deceased was proceeding. On account of the impact, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital and hence, filed claim petition claiming compensation of Rs.8,18,000/-.
The appellant-Insurance Company contested the proceedings by filing written statement. The Insurance Company stoutly denied the entire averments made in the claim petition and a specific contention was taken disputing the very involvement of the Mahindra Autorickshaw in the accident. The Insurance Company claimed that autorickshaw is falsely implicated to make a wrongful gain. The Insurance Company contended that accident occurred on account of rash and negligent driving by the driver of the maruthi omni car and therefore, contended that the claim petition is not at all maintainable against the appellant- Insurance Company.
The Tribunal having assessed oral and documentary evidence, answered Issue No.1 in the affirmative by holding that the driver of the offending autorickshaw was responsible for the accident and the claimants have established the negligence of the driver of the autorickshaw and as such the deceased sustained grievous injuries and succumbed to the injuries. The Tribunal having assessed oral and documentary evidence and in absence of income proof assessed the income of the deceased at Rs.6,000/- per month and by adding 50% towards future prospects and deducting 50% towards personal expenses, has awarded Rs.9,72,000/- under the head of loss of dependency. Hence, the present appeal is preferred by the Insurance Company.
3. The learned counsel appearing for appellant- Insurance Company lamenting the findings recorded by the Tribunal on issue No.1 in regard to negligence would take this Court to the complaint, which is marked as Ex.P2 and placing reliance on the same, the learned counsel would strenuously argue and contend before me that the complaint lodged with jurisdictional police clearly establishes that the accident occurred only on account of rash and negligent driving by the driver of the maruti Omni car bearing No.KA-20-T-1128. Therefore, placing reliance on the complaint as per Ex.P2, he would submit to this Court that the autorickshaw is falsely implicated though there is no reference in the complaint that the driver of the autorickshaw was also negligent and contributed to the accident.
To buttress his arguments, he would further take this Court to the ocular evidence of R.W.2 who is the owner of the autorickshaw and placing reliance on the same, he would submit to this Court that there is absolutely no evidence indicating that the said Madhukar Poojari sustained injuries on account of rash and negligent driving by the driver of the autorickshaw. Relying on these material documents, he would submit to this Court that the claim petition is bad for non-joinder of the owner of the maruthi car. On these set of grounds he would submit that the evidence on record would clearly establish that autorickshaw was not at all involved in the accident and the claim petition is liable to be dismissed against the appellant- Insurance Company.
4. Per contra, the learned counsel appearing for respondents 1 and 2-claimants repelling the arguments canvassed by the learned counsel appearing for Insurance Company would submit that the complaint as per Ex.P2 in itself would not dislodge the entire case of the claimants. The Investigating Officer during the course of investigation has recorded further statement of the complainant and there is a reference to the involvement of the autorickshaw. He would further submit that there is clinching evidence to establish that both autorickshaw and omni car were involved in the accident and not only the Omni car as alleged by appellant-Insurance Company. Ex.P8 is the motor vehicle inspection report. Placing reliance on Ex.P8 he would submit that on inspection the inspector has found that the front portion of autorickshaw is damaged. This documentary evidence is substantially corroborated by evidence of eye witnesses who are examined as P.Ws.3 and
5. Learned counsel for claimants by placing reliance on these materials would submit that the finding recorded on negligence while answering issue No.1 is based on records and does not suffer from any infirmities.
In regard to quantum, the learned counsel would submit that the compensation determined is in fact on the lower side and on the contrary there is scope for enhancement.
On these grounds he would submit that the quantum determined by this Court may not warrant interference at the hands of this Court.
5. Heard the learned counsel for appellant- Insurance Company and the learned counsel for respondents-claimants.
6. Regarding negligence:
6(a) Though the appellant-Insurance Company has examined two officials and has adduced documentary evidence, the said evidence would not come to the aid of the appellant-Insurance Company insofar as negligence is concerned. The appellant-Insurance Company is banking heavily on Ex.P2. No doubt, in Ex.P2 which is the complaint, it is stated that the accident had occurred on account of negligence on the part of the driver of the omni car. Ex.P2 is the first information and therefore, Ex.P2 in itself cannot be taken into consideration while deciding the negligence and also involvement of the vehicles. The Investigating Officer having commenced with the investigation has during the course of investigation found that autorickshaw was also involved in the accident. If the averments in the claim petition are examined at Para III (a) the claimants have narrated the manner in which the accident has occurred and for better understanding, the same is culled out as under:
"That on 14.01.2011 at about 8-15 P.M. deceased Madhukara Poojary was riding his Motor cycle bearing Reg. No.KA-20-J-4617 in a slowly, cautiously on the correct side of the road from Maranakatte side towards Chitthuru side, Opposite Citthuru Anganavadi, Chitthuru Village, Kundapura Taluk, over Chitthuru - Maranakatte Road, when he was so riding a Mahindra auto rickshaw bearing Reg. No.KA-20-B-6614 came from Chitthuru side towards Maranakatte side in a rash and negligent manner while overtake the one Maruthi omni car and came to the extreme right side on the road, dashed against the deceased motor vehicle. As a result of this impact the deceased Madhukara Poojary was sustained grievous injuries on his head and he was immediately shifted to Chinmayi Hospital, Kundapura and while transporting to the hospital he was died."
6(b)It is the claimants case that driver of the autorickshaw while overtaking Maruthi Omni Car came on extreme side of the road and dashed against the bike on which the deceased was proceeding. If these averments are examined by taking note of Ex.P8, the accident narrated in the claim petition would further get strengthened and would probabalise the manner in which the accident has occurred. On perusal of motor vehicle inspection report, what emerges is that the front door of the omni car on the driver's side is damaged. If this significant detail is taken into consideration, then it can be presumed that the auto driver while attempting to over take the omni car dashed against the omni car and thereafter dashed against the bike. These significant details coupled with ocular evidence of eye witnesses who are examined as P.Ws.3 and 5 would clearly establish the negligence of driver of the autorickshaw.
6(c) It would be also relevant to take note of the cross-examination of R.W.1 who is the driver of the offending autorickshaw. If his examination-in-chief is examined, it is clearly evident and further it would establish that the autorickshaw was also involved in the accident though not referred in the complaint. However, the driver of the offending autorickshaw has tried to make out a case that while he was trying to avoid a wild boar and though he tried to apply brakes he was not able to control the autorickshaw and dashed against a stone and therefore the headlight of the autorickshaw was damaged. This evidence would in fact come to the aid of the claimants and not the appellant-Insurance Company. The explanation offered by the driver of the offending autorickshaw is not plausible and cannot be believed. In fact his evidence clearly establishes that the driver of the autorickshaw while attempting to overtake the omni car went on the extreme right side and dashed against the bike on which the deceased was proceeding. Therefore, the clinching evidence on record clearly indicates that it is the driver of the autorickshaw who has caused the accident and therefore, there is no material on record indicating composite negligence and t
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herefore, even question of recovery by the claimants from any one of the joint tort feasors would not arise in the present case on hand. The clinching evidence adduced by the respondents- claimants coupled with the ocular evidence of R.W.2 clearly establishes the negligence of the driver of the autorickshaw and therefore the finding recorded by the Tribunal on issue No.1 is based on records and would not warrant any interference. 7. Regarding quantum: The Tribunal has notionally assessed the income of the deceased at Rs.6,000/- per month. In fact in the absence of income proof, if the chart issued by the Legal services authority is taken into consideration, the income has to be assessed at Rs.6,500/- and even if 40% is added the compensation payable under the head of loss of dependency would be on the higher side. Even under the conventional heads, the claimants would be entitled to higher compensation. However, the claimants have not preferred any appeal seeking enhancement. Therefore, even on quantum, no interference is warranted. Accordingly, the appeal is dismissed.