6. Sri.A Sendil Velan, Major S/o late Arumugam No.18, Chendil Niiaya " Rajanna Garden, Eehind BTS Garage _ ' Vijaynagar, Bangalore -- 40 ' (By Sri:C Puttaswamy, Adv for.:,,C%R1--S) V MFA l\lo.1438/2009«.Es filed.vU«nd.e'r*.,Section 173(1) of MV Act against the Judgrnent"ari'd;Awa_rd,d~ated 04.11.2008 passed in MVC No.915/goose on the-"'*fivle'~.oVf_iX Addl. Judge, Court of Small C:au.ses,fMe'm~ber,'Mi.A,CT~~7,, Bangalore, partly allowing the %:lai;§n='petition"for"'compen.sation and seeking enhanceme_n"to.f '<:ornpen_s.aVt~i.Qn;." V MFA' 'N0,.5265'§/20'G9"'is fil_e'd"LJnder Section 173(1) of MV Act,,_ag._ainst'*'th~e, and Award dated 04.11.2008 passed 'in MVC.No..[9.15,'.20Q48.~ on the fiie of IX Addi. Judge, Court of'=_Smal|"- C'aus-es'-,._ Member, MACT--7, Bangalore, awarding a'compgeinsa-tio'n" of Rs.4,37,000/~ with interest at 8°/qpelr iannunfi -from the date of petition tiil realisation. are coming on for Hearing this day, the C0l._Jl't. n":4aVda"it.t}e--vfollowing: COMMON JUDGMENT ~~¥3o;th these appeals have arisen from the same A '*:l."_J).u:d'g*«ment and Award dated 04.11.2008 passed in MVC l\So.915/2008 by the learned Judge, Court of Small Causes and Member, MACT, Bangalore (SCCH 7) (hereinafter referred to as 'Claims 'fa-ibunal' for short). ......_§'~v"*~***"~* 2. MFA No.1438/2009 is filed by the s:lai.tr;«aT:nt'4 bios: to 5 and MFA No.2659/2009 is filed No.2 namely the Oriental Insurance 'Au which the motor cycle bearing reigistration:i'»£o;i(i¢« 5204 which was involved in thg;"a_ccider1t_t'hat'-.occij'ri'ed: on " 0 15.10.2008
was insured…’ Thye-~’i’n.sL_u.rérs’.has “c’h~a.lle.n§ged the
correctness of the impdgned Valndvaward only on
the factum of_n.egl.i_gen:’ce’ilorii: the«.:part’- the rider of the
said motor” .0 ‘V~._C|a_ini_ants have sought for
enhancei’i–1efl:f”j:Rolf’:’ii;corfi.4P’§ns’atio.n~5 awarded under the
impugned towards the death of the
deceased u’iHar:vurna_ia’h,”the husband of claimant No.1,
fatheir Qf.Clairn’a”n.tAN.Q_’S’\.2 to 4 and the son of claimant No.5
‘in’the cI_ai~ntvpe’t.ition.
3,__=’ R Ravishankar, learned Counsel for the
K””‘~..VV””insure.r;…tthe appellant in MFA No.26S9/2009, strongly
rcontelnds that the claimants failed to establish that the said
..,.accident was due to sole negligence on the part of the
rider of the said motor cycle inasmuch as no eye witness
¢—._(“”‘-*x.—
8
deserves to be modified. He aiso contends that the
compensation awarded under other conventionalfhea’ds7i,S
aiso not adequate and as such the same deserves’
enhanced.
5. I-‘W1 is the wife of th:éodece’aseid’;
she did not witness the occu-rirenyce oi’ t__he_Vaccid._eht~.~ ‘°It ism
not in dispute that the rideVAr.«—of”L’t_he..LAmohtor*Cycle dashed
against the deceased was in the road
and conse€il%@.nt2y_ injuries and
succumbed S-_ahi’ej_.–.._i_1’E.uVrt.hef.i3themciaimants have not
ied any–.e–vid’Ae~ncelV’:*o;f as to the occurrence of
the said a’cCidevnt{f-~.:y:’l it
“Thye’in’sui*’er”aiso has not led any evidence.
‘ Ex”.irP;i,2,/the'”motor«vehicies accident report, which is not in
that the said accident was not due to
any__Vme.cha”n–icVal defect in the said motor cycie. Therefore,
it is clear that there was negligence on the part of the rider
motor cycle and consequently the accident occurred.
__Since there is no oral evidence placed on record by either
:’___.£”””‘~”‘Vsa.._—–4
10
west. Thus it is clear that motor cyciist was ridirig.f”–th”e’
motor cycie at a distance of 8 feet form his left’ it
It could be seen further from the said s_ketc’_h it
deceased covered the distance of
northern edge of the road forlgoingg toA\&ards_south;e’rn.. side, * L’
he was dashed against by theeymoitor ‘<:~,-iclist'.
8. If the to be very
cautious as péer:”s;on”‘ the road, the
pedestrian:s.ha_4l_’l}a.lV.s:o’ crossing the road.
When than half the width of
the his left side to see that no
vehicle. could conie’ and dash against him before he could
-r-:*–&u(
. .°*reVa’ch’ the other sildeiéof the road. If the deceased been
1’\..
extent, he could have avoided the
acc–i.den_t.~ ‘_;I..tAlis the settled iaw that when there is no
“*evidence:’of any eye witness to the occurrence of accident
-.a’s.._t_o.–‘ its cause, the principle of “res ipsa loquitor” is to be
_,applied to the facts of this case.
r-~J”””””‘
1’)
and
business at Byatarayanapura in Bangaiore City
earning income of Rs.8,000/- per month.
Tribunai has taken his income at»R’s».3,5C%_ti/atlfieyré mo’n_th’i;._V it
Since it is not in dispute that the deceifased hast
‘”3
the famiiy consisting of himséif_, his” wife,’lVt1nci..;’;:”~m:inor * L’
children and mother and he yiia-s:t,h_e”‘o,nly.eam.i,ng,f§memi:Jer
in the family, and that'”th_et in the year
2008 and also ‘maintaining his
family in llthellllconsidered opinion
that e$iad:eh’ce:d.,dr,»iiow1 that the deceased
was per month does not
deserve a’cceptance4,’iltheiiiiaims Tribunal was not justified
in theV.”s*aid_ ____ income at Rs.3,500/– only. In my
‘cons,ide_re>d*o;§inion, the Claims Tritiunai should have taken
ltheincomej-.of::.the deceased at the minimum of Rs,5,000/-
peru”mo”nth,”u Further, as laid down by the it-ion’ble Supreme
Court, in the case of Smnsarala Verma and Others Vs
higelihfi Transport Corporation and another reported in
“‘”2oo9(6) sec 121, if the family consists of the deceased,
his wife, children and parents, the deduction of 1/3″‘ of the
«f*’3
to “t’heV____extent of 25% towards occurrence of
‘i;.h’e –.acc_i4deiV1t.:”‘annual dependency of Rs.6,30,000/– has to
H 25% of it. Thus, the annual loss of
comes to Rs.4,72,S00/– (6,30,000/- -3
“1,’5″7..,’SV£i’O/–) and the same is hereby awarded in favour of
liithelclaimants together as against Rs.3,92,000/– awarded
V the Claims Tribunal under this head.
13
income of the deceased would not be justified.
as rightly submitted by the learned ~
claimants, the Claims Tribunal V.–was_ it
deducting 1/3″; of the income of
personal expenses. This dedluction 13/4%” = l’
of it. If 1/4″‘ of Rs.5,vC)0z0/– is–de”d:t1ct–e’d, lthernoynthly loss
of dependency comes to – 1,250) or
Rs.45,000/- per: aynnundw. ‘dispute as to
multiplier :ffCla_irn’s Tribunal. If this
annuai..vl-osvsylyylof. dep_eVnd*’e.r1icy is—multiplied by the multiplier
’14’, total’ comes to Rs.6,30,000′ /-
(45,000 is found that the deceased
1″-.t”‘—-“|I
‘_____~__§–.»-\……..
The impugned Judgment and Award insofar as
relates to apportionment of compensation and deposit.,s’tQ.:éo:’V’
be made, is ieft undisturbed. No order asto'”costs Tin
appeals.
Award shail be drawn accordingif§i’V»…_V’»%’ _V
Whatever amount is depos’it_e’d cam shail
be transmitted to the_C.|:aims to *~enab|e the
ciaimants to withdzjawx”ithéi~-S§;fie«.:_.,,.__1′
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