IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.4709 OF 2012 (MV I) C/W M.F.A.NO.4711 OF 2012 (MV) M.F.A.NO.4970 OF 2012 (MV D) M.F.A.NO.10264 OF 2012 (MV D) IN MFA NO.4709 OF 2012:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE HASSAN, THROUGH REGIONAL OFFICE, P KALINGA RAO ROAD, BANGALORE-27, BY DULY CONSTITUTED ATTORNEY. ... APPELLANT (BY SRI K SURYANARAYANA RAO, ADVOCATE) AND:
1. AMBUJA, W/O LATE M LOKESH, AGED ABOUT 29 YEARS.
2. KRUTHIKA, D/O LATE MAHESH, AGED ABOUT 7 YEARS.
3. MUNISWAMAPPA, S/O YANAPPA, AGED ABOUT 64 YEARS.
4. SAMPIGEYAMMA, W/O MUNISWAMAPPA, AGED ABOUT 60 YEARS.
RESPONDENT-2 MINOR REPRESENTED BY MOTHER RESPONDENT-1.
ALL ARE RESIDING AT NO.125, HENNUR BANGALORE MAIN ROAD, KANNUR VILLAGE AND POST, OPP. TO PITRANILAYA CONVENT, BIDARAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT - 562 149.
5. SUNANDA, W/O NAGARAJU, AGED ABOUT 36 YEARS, R/O BOOVANAHALLI KOODU, OPP. BHARATHI COFFEE CURING WORKS B M ROAD, HASSAN.
6. IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE, PEENYA BANGALORE. ... RESPONDENTS (BY SRI SURESH M LATUR, ADVOCATE FOR R1,R3 & R4; R2 MINOR REPRESENTED BY R1;
SRI V.VIJAYASHEKARA GOWDA, ADVOCATE FOR R3,R4; SRI B.C.SEETHARAMA RAO, ADVOCATE FOR R6;
R5 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.1.2012 PASSED IN MVC NO.781/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT, KUNIGAL, AWARDING A COMPENSATION OF RS.4,50,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.4711 OF 2012: BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, HASSAN DISTRICT, HASSAN, THROUGH REGIONAL OFFICE, P.KALINGARAO ROAD, BANGALORE – 27, REGIONAL MANAGER. ... APPELLANT (BY SRI K SURYANARAYANA RAO, ADVOCATE) AND:
1. N SHIVANNAGOWDA, S/O LATE NANJEGOWDA, AGED ABOUT 54 YEARS.
2. SMT. PUTTAMMA, W/O LATE SHIVANNEGOWDA N, AGED ABOUT 50 YEARS.
3. MR.G SATISH, S/O LATE SHIVANNEGOWDA N, AGED ABOUT 30 YEARS.
ALL ARE RESIDENTS OF MADIHALLI, HONNAVARA POST, BINDIGANAVILE HOBLI, NELAMANGALA TALUK.
4. SMT SUNANDA, W/O NAGARAJU, AGED ABOUT 36 YEARS, OPP. BHARATHI COFFEE CURING WORKS, B M ROAD, HASSAN.
5. IFFCO TOKYO GENERAL INSURANCE COMPANY. LTD., BRANCH OFFICE, PEENYA, BANGALORE, BY BRANCH MANAGER. ... RESPONDENTS (BY SRI MUSHTAQ AHMED, ADVOCATE FOR R1 TO R3; SRI H.N.KESHAVAPRASHANTU, ADVOCATE FOR R5; VIDE ORDER DATED: 27.03.2017 R4 TREATED AS DULY SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2012 PASSED IN MVC NO.782/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, ADDITIONAL MACT, KUNIGAL, AWARDING A COMPENSATION OF RS.3,42,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.4970 OF 2012: BETWEEN 1. SMT AMBUJA, W/O LATE M LOKESH, AGE: 28 YEARS.
2. KRUTHIKA, D/O LATE M LOKESH, AGE: 6 YEARS, SINCE MINOR RESPONDENT BY NATURAL GAURDIAN MOTHER SMT AMBUJA THE 1ST APPELLANT.
3. MUNISWAMAPPA, S/O YANAPPA, AGE: 63 YEARS.
4. SAMPIGEYAMMA, W/O MUNISWAMAPPA, AGE: 59 YEARS, ALL ARE R/AT NO. 125, HENNUR-BANGALORE MAIN ROAD, KANNUR VILLAGE AND POST, OPP. TO PITRANILAYA CONVENT, BIDARAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT – 562149.
... APPELLANTS (BY SRI SURESH M LATUR, ADVOCATE) AND:
1. SUNANDA, W/O NAGARAJU , AGE: 35 YEARS, R/O BOOVANAHALLI KOODU, OPP. TO BHARATHI COFFEE CURING WORKS, B.M. ROAD, HASSAN, HASSAN DISTRICT – 573103.
2. THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, HASSAN, HASSAN DISTRICT.
3. IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE PEENYA, BANGALORE – 560058. ... RESPONDENTS (BY SRI K SURYANARAYANA RAO, ADVOCATE FOR R2; VIDE ORDER DATED: 11.12.2013 – NOTICE TO R1 AND R3 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.1.2012 PASSED IN MVC NO.781/2008 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.10264 OF 2012:
BETWEEN:
1. N SHIVANNAGOWDA, AGED ABOUT 54 YEARS, W/O LATE NANJEGOWDA.
2. SMT. PUTTAMMA, AGED ABOUT 50 YEARS, W/O N SHIVANNAGOWDA.
3. MR. G SATISH, AGED ABOUT 30 YEARS, S/O N SHIVANNAGOWDA.
ALL ARE RESIDING AT MADIHALLI, HONNAVARA POST, BANDIGANAVILE HOBLI, NAGAMANGALA TALUK. ... APPELLANTS (BY SRI MUSHTAQ AHMED, ADVOCATE) AND:
1. SMT SUNANDA, AGED ABOUT 36 YEARS, W/O NAGARAJU, OPP. TO BHARATHI COFFEE CURING WORKS, B H ROAD, HASSAN, HASSAN DISTRICT.
2. THE NEW INDIA ASSURANCE CO. LTD., DIVISION OFFICE, HASSAN, HASSAN DISTRICT, REPRESENTED BY ITS MANAGER.
3. IFFCO-TOKTO GENERAL INSURANCE CO. LTD., BRANCH OFFICE, PEENYA, BANGALORE, REPRESENTED BY ITS MANAGER.
4. AMBUJA, AGED ABOUT 31 YEARS, W/O LATE M.LOKESH.
5. MUNISWAMAPPA, AGED ABOUT 66 YEARS, S/O YANAPPA.
6. SAMPIGEYAMMA, AGED ABOUT 62 YEARS, W/O MUNISWAMAPPA.
RESPONDENT NO.4 TO 6 ARE R/AT NO. 125, HANNUR BAG LOOR, MAIN ROAD, MALUR VILLAGE AND POST, OPP. TO PITRANIAYA CONVENT, BIDONAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE EAST DISTRICT. ... RESPONDENTS (BY SRI K SURYANARAYANA RAO, ADVOCATE FOR R2; SRI S.SRISHAILA, ADVOCATE FOR R3;
VIDE ORDER DATED 09.01.2013 – NOTICE TO R1 AND R3 TO R6 DISPENSED WITH) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2012 PASSED IN MVC NO.782/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC, ADDITIONAL MACT, KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of the learned counsel on both sides they are heard finally.
2. M.F.A.No.4711/2012 and M.F.A. No.4709/2012 are filed by the Insurance Company assailing the judgment and awards of the Tribunal in MVC No.782/2008 and MVC No.781/2008 respectively.
3. M.F.A. NO.10264/2012 and M.F.A.
NO.4970/2012 assail the aforesaid respective judgments and awards on the question of quantum of compensation awarded by the Senior Civil Judge and JMFC and Additional MACT at Kunigal (herein after referred to as “the Tribunal” for brevity sake), both dated 11.01.2012.
4. At this stage it may be mentioned that though the claim petitions arise out of the very same accident nevertheless they were heard and disposed of by separate judgment and awards. However, before this Court the appeals have been connected together and hence they are heard and disposed of by this common judgment.
5. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
6. The parents and brother of deceased M.S. Harish filed MVC No.782/2008 while the widow, daughter and parents of deceased M. Lokesha filed MVC No.781/2008 seeking compensation on account of the death of the respective persons in a road traffic accident that occurred on 2.4.2008. According to the claimants on the said date at about 1.30 a.m. Harish, being the cleaner and Lokesha being the driver of Canter vehicle bearing registration No.KA–19-B-4854, were proceeding towards Kunigal. When they were near a Fire Station on B.M. – National Highway – 48, a lorry bearing registration No.KA- 13–A–3486 which was proceeding ahead of the said Canter vehicle suddenly applied brake and stopped. As a result the driver of the Canter vehicle was unable to control the vehicle and dashed to the lorry. The impact resulted in the death of both Harish, the cleaner and Lokesha, the driver of the Canter vehicle on the spot. Their bodies were taken to Community Health Centre, Kunigal, where post mortem examination was conducted and thereafter the funeral rights were performed.
7. The widow, daughter and parents of Lokesha, the driver of the Canter vehicle in MVC No.781/2008 contended that Lokesha was hale and healthy. He was aged about 28 years. He was earning Rs.2,000/- per day as the owner cum driver of the Canter Lorry. That, as a result of the accident resulting in his death they had lost the bread earner of the family, that the accident had occurred solely due to the negligence of the driver of the lorry, which proceeding ahead of the Canter vehicle, which suddenly stopped. Therefore, they sought for compensation on account of the death of Lokesha.
8. Pursuant to the notice issued by the Tribunal the first respondent owner of the lorry was served, but did not appear and was placed ex-parte. The second respondent insurer filed its written statement denying the averments made in the claim petition and contended that the accident had occurred due to the contributory negligence on the part of the deceased Lokesha, that the driver of the lorry was in no way responsible for the accident. That the petition was bad for non joinder of necessary parties. The second respondent insurer sought for dismissal of the claim petition.
9. The respondent insurer also appeared through its counsel and contested the petition by filing written statement admitting the accident, but contended that the driver of the Canter Lorry, namely, Lokesha was not holding a valid driving license at the time of accident. Denying all other averments made in the claim petition, the third respondent also sought for dismissal of the same.
10. In MVC No.782/2008 the parents and driver of the cleaner of the Canter vehicle Harish contended that Harish was only 23 years of age. He was a driver cum cleaner in the Canter vehicle. He was earning Rs.6,000/-
p.m. and Rs.100/- per day as bhata, that the claimants had lost the bread earner of the family and therefore they sought for compensation on account of his death. In the said case also the owner of the lorry respondent No.1 remained ex parte, while the second and third respondents insurers appeared through their respective counsel and filed their written statements denying the averments made in the claim petition and sought for dismissal of the same.
11. On the basis of the rival pleadings the Tribunal framed the following issues in MVC No.781/2008:
1. Whether the petitioner proves that on 02.04.2008 around 1.30 a.m. while the driver of the Lorry bearing Reg.No.KA-13-A-3486 drover the same in a rash and reckless manner without any signal lights and stopped the same without any indication as a result of which the canter vehicle bearing Reg.No.KA-19-B-4854 dashed against the same and as a result of said accident husband of first petitioner Sri. Lokesh died at the spot?
2. Whether the petitioner proves that deceased Lokesh was earning more that Rs.2,000/- per day?
3. Whether the second respondent proves that the accident has taken place due to composite negligence on the part of the deceased Lokesh?
4. Whether the respondents proves that the drivers of the vehicles did not possess valid driving license?
5. Whether the respondents prove that the petition is bad for non-joinder of necessary parties?
6. Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
7. To what Order and Award?
12. In MVC No.782/2008 the Tribunal framed the following issues for its consideration :
1. Whether the petitioners prove that one M.S.Harish S/o N.Shivannagowda died due to the injuries sustained in the motor vehicle accident which took place on 02.04.2008 around 1.45 a.m. near Fire Station, B.M.Road, NH.48, Kunigal Town, due to the rash and negligent driving of the Lorry bearing Reg.No.KA-13-A-3486 by its driver?
2. Whether the 2nd and 3rd respondents prove that the driver of the Lorry was not holding valid and effective driving licence to drive the same as on the date of the accident?
3. Whether the petitioners are entitled for compensation? If so for how much amount and from whom?
4. To what Order or Award?
13. In MVC No.781/2008 the claimants examined three witnesses and they produced six documents which were marked as EXs.P1 to P6. While the respondents examined RW.1 and produced five documents which were marked as EXs.R1 to R5. On the basis of the said evidence the trial Court answered issue No.1 in the affirmative, issue Nos.2 and 3 partly in the affirmative, issue Nos.4 and 5 in the negative and awarded compensation of Rs.4,50,000/- with interest at the rate of 6% p.a. from the date of the claim petition till realization and fastened the liability on the drivers of both the lorry as well as the Canter vehicle to an extent of 70:30. Being aggrieved by the said judgment the second respondent insurer has preferred its appeal in MFA No.4709/2012 challenging the finding on negligence while the claimants have preferred MFA No.4970/2012 seeking enhancement of compensation.
14. In MVC No.782/2008 the claimants examined two witnesses and produced fourteen documents which were marked as EXs.P1 to P14. The respondent insurer examined two witnesses and produced two documents which were marked as EXs.R1 and R2. On the basis of the evidence on record the Tribunal answered issue No.1 partly in the affirmative, issue No.2 in the negative and awarded compensation of Rs.3,42,000/- with interest at the rate of 6% p.a. from the date of the claim petition till realization and apportioned the negligence on the driver of the lorry and on the driver of the Canter vehicle in the ratio of 70:30. The Insurance Company has assailed the said finding on negligence by filing MFA No.4711/2012 and the claimants have filed MFA No.10264/2012 seeking enhancement of compensation.
15. We have heard learned counsel for the appellant insurer (the New India Assurance Company Ltd.,) and learned counsel for the respondent insurer (IFFCO- TOKYO General Insurance Company ltd.,) and perused the material on record.
16. Learned counsel for the appellant insurer contended that the Tribunal was not right in fastening 70% negligence on the driver of the lorry. He contended that the driver of the Canter namely, Lokesha was unable to control the speed of the Canter vehicle and he dashed against the lorry from behind. Further, the said driver also did not maintain sufficient distance between his vehicle and the lorry. Even if for a moment it is to be assumed that the lorry applied brakes and stopped, that would not have automatically resulted in a collision between the Canter vehicle which was proceeding behind the lorry. If the driver of the Canter vehicle was driving in a controlled speed and by maintaining sufficient distance the said accident would not have occurred at all. He contended that for valid reasons the driver of the lorry had to apply brake and stop the vehicle, but the driver of the Canter vehicle on account of his excessive speed and not maintaining distance collided with the lorry from behind. Therefore, the entire negligence was on the driver of the Canter vehicle and therefore the Tribunal’s finding that there was composite negligence to an extent of 70:30 may be reversed and the entire negligence may be placed on the driver of the Canter vehicle. In support of this submission he stated that the driver of the Canter vehicle Lokesha was charge sheeted despite his demise in the accident. Hence learned counsel for the appellant insurer contended that this Court may reverse the finding given by the Tribunal and hold that the entire negligence was on the part of driver of the Canter vehicle and exonerate the owner and appellant insurer.
17. Per contra, learned counsel for the respondents- claimants contended that there is no merit in the appeals filed by the appellant insurer. That the driver of the lorry which was proceeding ahead of the Canter vehicle could not have suddenly applied brake resulting in the driver of the Canter vehicle colliding with the lorry from behind. This was on account of there being absolutely no time for him to control his vehicle and also apply brake so as to avoid collision with the lorry from behind. They contended that if the driver of the lorry had not applied brake suddenly there was no possibility of the driver of the Canter vehicle hitting the lorry as both the vehicles would have proceeded in the same direction in which case there would have been no chance of collision of the Canter vehicle to the hind portion of the lorry. It is only because of the driver of the lorry who suddenly applied brakes without indication that the driver of the Canter vehicle perforce had to dash against the hind portion of the lorry. That the entire negligence is on the driver of the lorry and therefore this Court may hold that the entire negligence was on the driver of the lorry and exonerate the driver of the Canter vehicle, so that the entire compensation will have to be paid by the owner and insurer of the lorry. It was contended that the Tribunal was not right in fastening 30% negligence on the driver of the Canter vehicle, as a result his legal representatives have been denied of compensation to that extent. Therefore, the negligence may be found entire 100% on the driver of the lorry and the driver of the Canter vehicle may be exonerated of the tortious act.
18. By way of reply, learned counsel for the appellant insurer alternatively contended that if this Court were to reconsider the negligence aspect on the basis of the submission of the learned counsel for the claimants in MFA No.4970/2012 then a resent decision of the Hon’ble Supreme Court in the case of Nishan Singh and others vs. Oriental Insurance Company Ltd., through Regional Manager and others (Civil Appeal No.10145/2016 disposed of on 27.04.2018) may be considered as in the said case Regulation 23 of the Rules of Regulation, 1989 has been considered, wherein it has been stated that the driver of a motor vehicle moving behind another vehicle shall keep sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. He contended that in the event this Court is to reconsider the question of negligence then in that case the judgment of the Supreme Court based on Regulation 23 may be considered and apportion the liability also on the driver of the Canter vehicle rather than accepting the contention of learned counsel for the claimants that the driver of the lorry was liable to an extent of 100%.
19. Learned counsel for the respondent claimants made submission in respect of their appeals. Learned counsel for the appellant in MFA No.4970/2012 contended that the deceased Lokesha was the driver of the Canter vehicle, that apart from the issue regarding negligence the compensation awarded by the Tribunal is on the lower side and the same my be enhanced. It was submitted that Lokesha was aged 28 years and he was a driver cum owner of the vehicle. The Tribunal has assessed the notional income at Rs.4,000/- p.m. which is on the lower side by ignoring the fact that he was not simply a driver of the vehicle, but also owner of the vehicle and he was eking out his livelihood by using the vehicle for transportation of goods. Therefore, the notional monthly income may be enhanced. Further, in terms of the resent dictum of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd., vs. Pranay Sethi reported in (2017) 16 SCC 680, future prospects to an extent of 40% may be added to the notional income, that the claimants are four in number and hence 1/4th of the income ought to be deducted towards personal expenses of the deceased, compensation on the head of loss of parental consortium, loss of love and affection and other conventional heads may be enhanced and thereby increase the total compensation.
20. Learned counsel for the Insurance Company submitted that the award of compensation in the instance case is just and proper and the same would not call for any enhancement. In MFA No.10264/2012 which pertains to the death of the cleaner Harish, learned counsel for the appellant claimants contended that the deceased was 23 years of age, that though the accident occurred in April, 2008 the Tribunal has assessed the notional income at Rs.4,000/- only which is on the lower side. That normally for the work of a coolie, this Court would assess the notional income at Rs.4,500/- atleast, in the case of an accident which occurs in the year 2008 and the said amount may atleast be taken into consideration. Further, 40% of the said amount would have to be added towards future prospects as per the decision of the Hon’ble Supreme Court in Pranay Sethi. Since the deceased was a bachelor 50% of the same may have to be deducted towards the personal expenses of the deceased and by applying the multiplier of ‘18’ compensation may be enhanced in the said case. He submitted that depending upon the finding on the negligence the liability of the respective insurers may be apportioned by increasing the over all compensation.
21. Learned counsel for the respective insurance companies contended that the award of compensation in this case is also just and proper and same would not call for any enhancement and they sought for dismissal of the appeals.
22. Having heard the learned counsel for the respective parties, the following points for consideration would arise.
(1) Whether the Tribunal was justified in apportioning the negligence on the driver of the lorry and the driver of the Canter vehicle to an extent of 70:30?
(2) Whether the claimants are entitled to enhancement of compensation ?
(3) What order?
23. The fact that on 02.04.2008 at about 1.30 a.m. the Canter vehicle bearing No.KA–19–B–4854 driven by Lokesha on NH–48 dashed against lorry bearing registration No.KA-13-A-3486 has been established. The controversy however is as to whether the collision of the Canter vehicle to the lorry which suddenly applied brakes and halted was on account of the negligence on the part of the driver of the lorry or whether there was any negligence on the part of the driver of the Canter vehicle also. The contentions of the respective counsel have been narrated in detail and would not call for any reiteration, but the fact remains that the lorry was proceeding ahead the Canter vehicle. If the lorry was moving, then there would not have been any chance of the Canter vehicle dashing against the moving lorry. The fact that the Canter vehicle which was proceeding behind the lorry collided with the lorry was because the lorry suddenly halted by applying brakes. This sudden halt of the lorry resulted in the collision of the Canter vehicle which was proceeding behind the lorry on its hind side.
24. In that regard learned counsel for the appellant insurer contended that the entire negligence is on the part of the driver of the Canter vehicle while the claimants in respect of the death of the driver Lokesha contended that the entire negligence was on the part of the driver of the lorry and the Tribunal has apportioned negligence in the ratio of 70:30. In this regard it is observed that there is negligence on the part of the driver of the lorry as well as on the driver of the Canter vehicle. As already noted if the lorry was moving there would have been no chance for the driver of the Canter vehicle to collide with the lorry from behind, but the lorry suddenly halted without any indication, leaving no chance for the driver of the Canter to control the speed of the vehicle which ultimately resulted in the collision. In this context it is necessary to observe that had the driver of the Canter vehicle not been speeding and had left sufficient distance between the lorry and his vehicle possibly even if the lorry suddenly halted he could have controlled the Canter vehicle and avoided collision. But the driver of the Canter vehicle possibly was speeding and did not leave sufficient distance and ultimately collided with the lorry from behind. In this regard it is relevant to note Regulation 23 of the Rules of Road Regulation, 1989 which reads as under:
“ 23. Distance from vehicles in front. – The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. ”
25. On a reading of the same it is clear that when a driver of a motor vehicle moving behind another vehicle he has to maintain sufficient distance in order to avoid collision with the other vehicle which is proceeding in front should the said vehicle slow down or halt. In the instance case it is apparent that the driver of the Canter vehicle did not maintain sufficient distance form the lorry which suddenly stopped and hence dashed against it. Therefore, we find that the Tribunal was justified in apportioning liability on both the drivers. However, in this regard the judgment relied upon by the learned counsel for the claimants in MFA No.4970/2012 in the case of Divisional Manager, National Insurance Company Ltd., vs. New India Assurance Company Ltd., through its Divisional Manager and others reported in (2018) 13 SCC 126 could be distinguished. In the said judgment there is no reference made to Regulation 23 extracted above. Further the said judgment is rendered by a bench of two Hon’ble Judges whereas in Nishan Singh is the judgment of three Hon’ble Judges of the Supreme Court and it is a judgment whereas in the case of National Insurance Company Ltd., it is an order. In the circumstances, we find it proper to follow the judgment of the Hon’ble Supreme Court in Nishan Singh and ultimately confirm the finding of the Tribunal on the apportionment of negligence to an extent of 70% on the driver of the lorry and 30% on the driver of the Canter vehicle. Accordingly, the point No.1 is answered against the appellant insurer and also against the claimants in MFA No.4970/2012.
26. This takes us to the next point regarding quantum of compensation awarded by the Tribunal. It is unnecessary to reiterate the contentions of the respective counsel. MFA No.4970/2012 has been filed by the legal representatives of deceased Lokesha, the driver of the Canter vehicle seeking enhancement of compensation. He was not only the driver of the said vehicle but he was also its owner and he was earning by using the said vehicle for transportation of goods. He was 28 years of age. The appropriate multiplier which has to be applied is ‘ 17’. The accident occurred in April, 2008. The Tribunal assessed the notional income at Rs.4,000/-, but having regard to the aforesaid facts we find that the said assessment of the notional income is on the lower side and instead we assess the notional income at Rs.8,000/- p.m. In terms of the resent judgment of the Hon’ble Supreme Court in Pranay Sethi 40% of the said income is added towards future prospects. Thus, the monthly notional income is Rs.11,200/-. Since there are four claimants 1/4th of the said income is deducted towards the personal expenses of the deceased (11,200 – 2,800 = 8,400/- x 12 x 17 = Rs.17,13,600/-) which is on the head of loss of dependency. A sum of Rs.40,000/- is awarded to the wife of the deceased towards loss of spousal consortium; a sum of Rs.30,000/- is awarded to the minor child of the deceased towards loss of parental consortium, a sum of Rs.30,000/- each is awarded to the parents of the deceased towards loss of filial consortium, a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation is Rs.18,73,600/-. The said sum shall carry interest at the rate of 6% p.a. from the date of the claim petition till realization.
27. Out of the said compensation the claimants are entitled to only 70% of the same as the deceased Lokesha was negligent in causing the accident to an extent of 30% and hence they would not be entitled to the said extent of compensation. Thus, the appeal filed in MFA No.4970/2012 is allowed in part. The apportionment of compensation to the claimants as made by the Tribunal is confirmed. However, the direction for deposit and release of the compensation is as under:
75% of the compensation awarded to the widow of the deceased shall be deposited in any post office or nationalized bank deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
The entire compensation awarded to the second claimant minor child, shall be ordered to be deposited in any post office or nationalized bank deposit till she attains the age of majority.
The direction for deposit and release made in respect of the parents of the deceased is retained.
28. This takes us to MFA No.10264/2012. The deceased Harish was the cleaner of the Canter vehicle. He was 23 years of age and the appropriate multiplier applicable is ‘18’. According to the claimants he was earning about Rs.6,000/- p.m., but the Tribunal assessed notional income of Rs.4,000/- only per month. Having regard to the fact that in respect of an accident which has occurred in the year 2008, for an unskilled employee, normally this Court would assess the notional income at Rs.4,500/- p.m., in the absence of corroborative evidence we propose to assess the notional income of the deceased at Rs.4,500/- p.m. 40% of the said amount is added towards future prospects which is Rs.1,800/-. Thus the total notional income is Rs.6,300/-. As the deceased was a bachelor, 50% of the same is deducted towards his personal expenses and consequently, the compensation on the head of loss of dependency is Rs.3,150/- x 12 x 18 = Rs.6,80,400/-. A sum of Rs.30,000/- each is awarded to the parents of the deceased towards loss of parental consortium and a sum of Rs.30,000/- is awarded to the brother towards loss of love and affection, a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation would be Rs.8,00,400/-. The same shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
29. Thus, the liability of the appellant insurer in both the cases is to an extent of 70% only and the liability of the respondent insurer (in MVC No.782/2008) in MFA No.10264/2012 is to an extent of 30% only.
30. The Insurance Companies to deposit to the extent of their liability within a period of four weeks from the date of receipt of certified copy of this judgment.
31. The compensation apportioned to the claimants by the Tribunal is retained, namely, 45:45:10.
32. 60% of the compensation awarded to the parents shall be deposited for an initial period of ten years in their respective names in any post office of or nationalized bank deposit. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
33. The compensation awarded to the brother of the deceased shall be released to him after identification.
Thus, the appeal filed by the claimants in MFA No.10264/2012 is allowed in part.
34. In the result, MFA No.4711/2012 and MFA No.4709/2012 are dismissed. The amount in deposit shall be transmitted to the Tribunal, while MFA No. 10264/2012 and MFA No.4970/2012 are allowed in part.
35. The amount in deposit before this Court to be transmitted to the concerned Tribunal.
36. Parties to bear their respective costs.
37. Registry to transmit the LCR to the concerned Tribunal forthwith.
38. In view of the disposal of the appeals, all pending applications stand disposed of.
Sd/- JUDGE Sd/- JUDGE ykl