1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE20H DAY OF JANUARY2016R PRESENT THE HON’BLE MR.JUSTICE RAM MOHAN REDDY AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A.NO.31686/2013 (MV) C/W M.F.A NOS.31483/2013 & 31412/2013 (MV) IN M.F.A.NO.31686/2013 Between: The General Manager ICICI Lombard Gen. Ins., Co. Ltd., Timmapuri Circle, Gulbarga Through its Manager Legal (By Sri C. S. Kalburgi, Advocate) And:
1. Rajendrasingh S/o Kalyansingh Thakur Age:
37. years, Occ: KSRTC driver cum Conductor …Appellant 2 R/o Old Jewargi Road, Panchsheel Nagar Gulbarga- 585 102 2. Abdul Rahman S/o Khasim Ali Age:
42. years, Occ: Owner of The Lorry No.KA-27-0649 Mominpura, Kharibowli Gulbarga- 585 102 3. Divisional Controller, KSRTC Depot No.2, Gulbarga- 585 102 …Respondents (By Sri A.M. Patil, Advocate for R3; R1 Served; Notice to R2 is dispensed with) This Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 17.4.2013 passed in MVC No.89/2011 on the file I-Addl. Senior Civil Judge and MACT at Gulbarga, partly allowing the claim petition and awarding compensation of Rs.1,95,000/- with interest at 6% P.A. IN M.F.A.NO.31483/2013 Between:
1.
2.
3. Smt. Banashankari @ Yallamma W/o Late Manohar Banasode Age:
42. years, Occ: Household Pooja D/o Late Manohar Banasode Age:
25. years, Occ: Household Rakesh S/o Late Manohar Banasode Age:
23. years, Occ: Student 3 4.
5. Raghavendra S/o Late Manohar Banasode Age:
22. years, Occ: Student Rahul S/o Late Manohar Banasode Age:
20. years, Occ: Student All are residents of Chadchan, Taluka Indi District Bijapur, Now at Residing House No.135/B, opposite Darga, Gubbi Colony Gulbarga- 585 102 (By Sri S.S. Kumman, Advocate) …Appellants And:
1.
2. Abdul Raheem S/o Kasim Ali Qureshi Age:
40. years, Occ: Owner of Lorry bearing No.KA-27/0649, Resident of house No.6-196, Kari Bawali Mominpura Gulbarga- 585 101 The Manager I.C.I.C.I. Lombard General Insurance Limited 10th main, Keshav Rao Khade Marg Mahalaxmi Mumbai- 400 034 Through its Manager I.C.I.C.I. Lombard General Insurance Company Limited Khotari Complex, Timmapur Circle Vallabhi Chowk Gulbarga-585 102 (Insurance of Insurer of Lorry Bearing No.KA-27/0649) (By Sri C.S. Kalburagi, Advocate for R2; Notice to R1 is dispensed with) …Respondents 4 This Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 16.02.2013 passed in MVC No.969/2010 on the file Principal Senior Civil Judge & MACT Gulbarga at Gulbarga, partly allowing the claim petition and seeking enhancement of compensation. M.F.A.NO.31412/2013 Between: The General Manager ICICI Lombard Gen. Ins., Co. Ltd. Mayura Complex, 10th main Keshav Rao Khade Marg, Mahalaxmi Mumbai-400034, Through its Manager ICICI Lombard Gen. Ins. Co. Ltd. Ist Floor, Kothari Complex Timmapuri Circle, Sardar Vallabai Patel Chowk, Gulbarga Through its Manager Legal (By Sri C.S. Kalburgi, Advocate) And:
1. Smt. Banashankari @ Yallamma W/o Late Manohar Banasode Age:
43. years, Occ: Household 2. Pooja D/o Late Manohar Banasode Age:
26. years, Occ: Household 3. Rakesh S/o Late Manohar Banasode Age:
24. years, Occ: Student …Appellant 5 4. Raghavendra S/o Late Manohar Banasode Age:
23. years, Occ: Student 5. Rahul S/o Late Manohar Banasode Age:
21. years, Occ: Student All are residents of Chadchan, Taluka Indi, District Bijapur Now residing house No.135/B Opposite Darge, Gubbi Colony Gulbarga- 585 102 6. Abdul Raheem S/o Kasim Ali Qureshi Age:
43. years, Occ: Owner of Lorry Bearing Reg. No.KA-27-0649, Resident of House No.6-196, Kari Bawali Mominpura, Gulbarga- 585 102 (By Sri S.S. Kumman, Advocate for R1 t o R5; R6 – Served) …Respondents This Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 16.02.2013 passed in MVC No.969/2010 on the file Principal Senior Civil Judge and MACT at Gulbarga, partly allowing the claim petition and awarding compensation of Rs.30,57,100/- with interest at 6% P.A. These Appeals are coming on for Orders this day, RAM MOHAN REDDY J., delivered the following:
6.
JUDGMENTSince common questions of fact and that of law arise for decision making with the consent of learned counsel for parties, appeals are clubbed together, finally heard and disposed of by this common judgment.
2. MFA No.31686/2013 and MFA No.31412/2013 are filed by the insurer of Lorry bearing Certificate of Registration No.KA-27-649, aggrieved by the finding fastening liability to pay compensation, by judgment and award dated 17.04.2013 in MVC No.89/2011 of the I Addl. Senior Civil Judge & MACT, Gulbarga, and by judgment and award dated 16.02.2013 in MVC No.969/2010 of the Principal Senior Civil Judge & MACT, Gulbarga. (for short ‘MACT’).
3. MFA No.31483/2013 is preferred by the claimants in MVC No.969/2010, aggrieved by the judgment and award dated 16.02.2013 in MVC No.969/2010 insofar 7 as it relates to quantum of compensation and attributing contributory negligence of 40% to the driver of the public transport bus.
4. Respondent No.2 – owner/insured of the offending lorry since placed exparte before MACT in MVC No.89/2011, hence notice to said respondent is dispensed with in the light of Karnataka Amendment to Order 41 Rule 14 CPC.
5. Facts briefly stated are: On 27.04.2010 at about 6.00 a.m. , one Manohar, driver of bus bearing Certificate of Registration KA-32-F-1440 belonging to North East Karnataka Road Transport Corporation (for short ‘NEKRTC’), proceeding from Shimoga to Gulbarga, near Khalifat Darga at Jewargi – Gulbarga road, is said to have dashed a stationary Lorry bearing Certificate of Registration KA-27-649 owned by one Abdul Raheem (Abdul Rehaman) and insured by M/s.ICICI Lombard 8 General Insurance Limited - appellants in MFA Nos.31686/2013 & 31412/2013. Manohar – is stated to have succumbed to grievous injuries on 28.04.2010 after being shifted to Basaveshwar Hospital, Gulbarga.
6. One Rajendra Singh, a conductor-cum-driver of the NEKRTC bus having sustained grievous injuries due to the said accident, filed MVC No.89/2011, since, arraigned as respondent in MFA No.31686/2013, though served with notice, is absent and un- represented.
7. Dependents of the deceased Manohar filed MVC No.969/2010, while the injured Rajendra Singh filed MVC No.89/2011 for compensation invoking Section 166 of the Motor Vehicles Act, 1988, (‘Act’ for short). Though the petitions arise out of the very same accident, nevertheless, were proceeded with separately, and the trial held independently. 9 8. In both petitions, owner of the lorry-the insured, and the insurance company-the insurer, were arraigned as respondents. Insured/owner of the offending vehicle, though served with notice of the petitions, before the MACT, did not appear and was placed ex-parte in MVC No.89/2011 while in MVC No.969/2010 was represented by learned counsel, but did not offer resistance by filing statement of objections to the claim petitions. Insurer of the offending lorry resisted the petitions by filing written statement interalia denying the averments, contending that it was the driver of NEKRTC bus who caused the accident hence, responsibility was on the driver of NEKRTC bus, while asserting that the offending lorry was parked on the extreme left side of the road, though, without parking lights or any signal, since there was no such requirement. In addition, it was contended that the driver of the offending lorry did not possess a valid and 10 effective driving licence to drive the goods carrying vehicle as on the date of accident.
9. MACT framed issues in MVC No.969/2010, first of which related to negligence on the part of driver of the lorry and second, over whether driver of NEKRTC bus succumbed to grievous injury while third over the quantum of compensation and from whom to be recovered. Similar were the issues framed in MVC No.89/2011, though with reference to the injured claimant.
10. Parties let in evidence, when Police records, salary certificate and medical records in respect of the deceased and that of the injured were marked as Exhibits. In M.V.C.No.969/2010, the 1st claimant, widow, was examined as P.W.1, while Rajendra Singh, the injured as P.W.2 and marked Exs.P.1 to P.7. For the respondent – insurance company, three witnesses namely, Pradeep, S/o Sidddannagouda, Legal Manager 11 of the insurance company; Nazeersab, CPI, who turned hostile, and Y.K.Narasimhamurthy, S/o Kumbayya, Assistant Meteorologist of India, Meteorological Department were examined as R.Ws.1 to 3. In MVC No.89/2011, the claimant was examined as P.W.1; Dr. Sachin Shah as P.W.2. For the respondents, Pradeep, S/o Siddannagouda was examined as RW-1; Basavantappa, the Accounts Officer of NEKRTC as RW- 2 and Y.K. Narasimhamurthy, as RW-3 and marked Exs.R-1 to R-10.
11. MACT having regard to the pleadings, material on record, evidence both oral and documentary, attributed contributory negligence to the extent of 60% on the driver of NEKRTC bus and 40% to the driver of the offending lorry while fastening liability to pay compensation, on the insurer of offending lorry to the extent of 40% in both the petitions, however awarded compensation of `1,95,000/- with interest @ 6% p.a. 12 from the date of petition in MVC No.89/2011 and `30,57,100/- as compensation to dependents of deceased driver of the NEKRTC by the judgment and award in MVC No.969/2010.
12. The appeals preferred by the insurance company – insurer of the offending lorry are in respect of the finding fastening liability to pay 40% of the compensation since 40% of contributory negligence is attributed to the driver of the offending lorry, while appeal filed by claimants in MVC No.969/2010 is over the finding attributing contributory negligence of 60% on the driver of the bus belonging to NEKRTC, as well as the quantum of compensation, asserting it to be on the lower side.
13. It is submitted by learned counsel for the insurer that the MACT was not justified in attributing contributory negligence of 40% on the driver of the offending lorry, as also fastening liability to pay 40% of 13 the compensation, though the driver of the lorry did not possess a valid and effective driver’s licence.
14. Learned counsel for the claimants/appellants submits that in the absence of parking lights or hazard lights of the offending lorry being switched on, a mandate of law, coupled with the fact that the insurer did not advance a plea in the written statement of alleged contributory negligence, as also the MACT having not framed a point for such consideration, there was no justification to attribute contributory negligence of 60% on the driver of the NEKRTC bus. The award of compensation, it is submitted, is on the lower side.
15. Having heard the learned counsel, the following three questions arise for decision making: (i) Whether the finding of the MACT that accident took place due to contribution of negligence by both the drivers is justified?. 14 (ii) Whether the finding fastening liability to pay the compensation on the insurer is justified?. (iii) Whether the compensation awarded by the MACT in the facts and circumstances of the case and evidence on record could be regarded as “just” compensation within the contemplation of the ‘Act’?.
16. On the question of negligence, admitted facts are:- lorry was parked on the left side of the road (highway) at a place not being a notified parking place, without any indication or lights as is discernible from the statement of objections of the insurance company admitting said fact, as well as the spot sketch – Ex.P-6 in MVC No.89/2011; the driver of the bus belonging to NEKRTC traversing on the road in question, noticed the lorry ahead of it in a stationary position, despite efforts to avoid a collision, dashed against the hind right side portion of the Lorry, at about 6 AM, in the wee hours of the morning of 27.04.2010; the insurer in the written statement, did not advance the plea of contributory 15 negligence on the part of the driver of the bus, the MACT did not frame an issue or a point for consideration over contributory negligence and, the oral testimony of the witnesses for the insurer did not testify to contribution of negligence of the driver of the bus.
17. P.W.1 is the first claimant, the widow of the deceased, not an eye witness, while P.W.2, the conductor-cum-driver testified to the fact that the lorry was visible only when the bus of NEKRTC came near to it, as the lorry did not have its parking lights switched on. Nothing incriminating is elicited in the cross- examination of PW-2 to disbelieve his evidence. R.W.2, Nazeer Sab, the CPI since retired, though the witness for the insurer, turned hostile and in his cross- examination, nothing is elicited to disbelieve the testimony. The testimony of RW-3 the Assistant Meteorologist is of no assistance, since according to him at 6 AM sun rise had occurred on the relevant day. 16 18. Whether the driver of the offending lorry could have parked the vehicle on the left side of the road without switching on the parking lights, takes us to an examination of Sections 117 and 122 of the Motor Vehicles Act, 1988 which reads thus: “117. Parking places and halting stations.-.- The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
122. Leaving vehicle in dangerous position-- No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.” in such a condition or 17 Rule 109 of the Central Motor Vehicle Rules, 1989 provides for ‘parking light’ and reads thus: “109. Parking light. Every construction equipment vehicle and every motor vehicle other than motor cycles and three wheeled invalid carriages shall be provided with one white or amber parking light on each side in the front. In addition to the front lights, two red parking lights one on each side in the front. In addition to the front lights, two red parking lights one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road: Provided that these rear lamps can be the same as the rear lamps referred to in the rule 105 sub-rule (2): also that Provided construction equipment vehicles, which are installed with flood light lamps or sport lights at the front, rear or side of the vehicle for their off-highway or construction operations, shall have separate control for such lamps or lights and these shall be permanently switched-off when the vehicle is travelling on the road.” 19. In the light of the aforesaid statutory provisions, the offending lorry when not parked at a notified parking place or halting station, and the driver having 18 left the vehicle in a dangerous position likely to cause danger or undue inconvenience to other users of the public place, coupled with the fact, that parking lights were not lit when the vehicle was kept stationary on the road; a mandate of Rule 109 of the Rules, there can be no more doubt that the driver of the offending vehicle i.e., lorry was negligent in parking the lorry on the road put to use by other motor vehicles, the cause of accident.
20. A Division Bench of this Court in M.N.Rajan and others vs. Konnali Khalid Haji and another1, considering the pleading, on whom the burden of proof is placed and standard of proof expected to establish “contributory negligence”, the Bench of which one of us (RMRJ) was the companion judge observed thus: “We also do not find any merit in the alternate contention of the learned counsel for the owner and the insurer of the lorry that, at the worst, it is 1 MFA No.5673/2001 DD0708.2003 19 a case of contributory negligence and, therefore, the liability to pay the entire compensation cannot be fastened on the owner and the insurer of the lorry. In the first place, it needs to be noticed that the plea of contributory negligence is not taken in the written statement filed by the respondent No.2/Insurance Company. Respondent Nos.1 and 3 did not file the written statement at all.In the case of Pandian Roadways Corporation, Madurai vs. Karunanithi and another(air 1982 Mad 104:
1982. ACJ186 1982 TAC356, it is held that plea of contributory negligence should be taken in the written statement before the Claims Tribunal. Further more, in the case of M/s Yatayat Nigam, Udaipur vs. Union of India(AIR1983Rj 17:
1983. ACJ312 1983 TAC480, it is held that where negligence of plaintiff’s bus driver was not pleaded by the defendant, no issue was framed by the trial Court covering contributory negligence and no evidence was led, Rajasthan High Court took an exception to the judgment of the Appellate Court in making out a new case with regard to contributory negligence.” 20 21. The principle of contributory negligence is that plaintiff’s negligence is attracted in part to his own harm and would thus reduce the damages payable to him and as such, it affects the measure of damages.
22. In the present case, contributory negligence of the bus driver was not pleaded by the insurer. No issue was framed by the MACT covering contributory negligence and no evidence was led and therefore, a new case in regard to contributory negligence cannot be made out.
23. In General Manager, Bangalore Transport Service vs. N.Narasimhiah and others2, a co-ordinate Division Bench observed thus: “If it is found that the negligent act or omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person 21 injured had made it extremely difficult for the other to avoid the accident”.
24. In Sharada Bai vs. Karnataka State Road Transport Corporation3, another co-ordinate Division Bench observed thus: “If the tort-feasor’s negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim’s contributory-negligence was a substantial or co- operating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce 2 1976 ACJ37922 evidence about the matter. Contributory negligence can be - and very often is - inferred from the evidence already adduced on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case.” 25. In Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and others4, the Apex Court, having regard to contributory negligence observed thus: “10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling vs. Cooper5 AC at p.9 Lord Hailsham said: (All ER p.260 D-E) 3 ILR1987KAR27304 (2002)6 SCC4555 1931 AC123 “Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence. The plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.” 26. In Municipal Corporation of Greater Bombay vs. Laxman Iyer and another6, the Apex Court observed thus: “6.The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance “negligence” is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a 6 (2003)8 SCC73124 prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree or care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not 25 be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The Omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence, and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other’s negligence. Whichever party could have avoided the consequence of the other’s negligence would be liable for the accident. If a person’s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that 26 there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn., p. 361.) 27 7. At this juncture, it is necessary to refer to the “doctrine of last opportunity”. The said doctrine is said to have emanated from the principle enunciated in Davies vs. Mann [(1842) 10 M&W546 which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other’s carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. [See Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2 KB291]. Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lord in Volute [(1922) 1 AC129]. and Swadling v. Cooper, [(1931 AC1]. it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party’s negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence.” 28 27. In Smt. Indira Nehru Gandhi vs Shri Raj Narain7, the Constitution Bench of the Supreme Court, while disapproving A finding of ‘a defacto agency’ recorded by the Allahabad High Court, which was neither set up nor was subject matter of an issue, reiterated well recognized principle that ‘no amount of evidence could be looked into on a case not really set up’.
28. In Winfield and Jolowicz on Tort (18th edition), learned author’s speaking about ‘Duty of Care’ and ‘Standard of Care’ states thus: Duty of Care “The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that that the claimant should owe a duty of the defendant. All that is required is that the claimant should have failed to take reasonable care for his own safety. One sometimes comes across references to the claimant owing himself a duty to 7 AIR1975SC229929 take care of his own safety, but strictly speaking this, like the “duty” to mitigate, is a contradiction in terms. The fact that the defendant is under a duty of care to guide and supervise the claimant does not necessarily exclude contributory negligence if the claimant fails to warn the defendant that he is “getting out of his depth”.” Standard of Care “If what is alleged is negligence by the claimant, the standard of care expected of him for his own safety is in general the same as that in negligence itself and is in the same sense objective and impersonal, though, as there, some concession is made towards children and probably towards other persons suffering from some infirmity of disability rendering them unable to come up to the normal standard. Putting aside such exceptional cases, a: “[P].erson is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself and in his reckonings he 30 must take into account the possibility of other being careless. The degree of want of care which will constitute contributory negligence varies with the circumstances: the law certainly does not require the claimant to proceed on his way like a timorous fugitive constantly looking over his shoulder for threats from others. For example, it is not the law that a pedestrian is guilty of contributory negligence if he crosses the road without using an “authorised” crossing. As with any other aspect of the law of negligence the standard of care demanded may be adjusted to meet changing conditions; for example, in Froom v Butcher the Court of Appeal held that non-use of car seat belt generally constituted contributory negligence some seven years before Parliament mad the wearing of belts compulsory. Now that there is legislation requiring belts to be worn the correctness of this decision becomes even more obvious, though the incidence of criminal liability and contributory negligence may not be entirely coterminous. For many years there has been increasing public awareness of the dangers of smoking and a reduction was made under the Act for the claimant’s failure to 31 give up where this had made a material contribution to his lung cancer, which was also cause by the defendants’ exposure of him to asbestos. However, although public attitudes towards drinking and driving have become more severe in recent years, a person who accepts a lift from a person whom he has not seen consuming large quantities of alcohol is no obliged to interrogate him on his consumption.” 29. In the facts noticed supra, the question as to whether the deceased driver of the bus also contributed negligence for causing the accident being indisputably a question of fact, which ought to have emanated from a plea of contributory negligence as a defence by the insurer of the offending lorry and having not done so in the written statement, coupled with the fact that no issue with respect to contributory negligence is framed by the MACT nor was evidence adduced in support of such a claim, while even before us, it is not the contention of the insurer that deceased also contributed negligence for causing the accident, we do not think 32 that MACT was justified in attributing contributory negligence to the deceased also in causing the accident. Consequently, we cannot sustain the finding of the MACT insofar as it has attributed 60% contributory negligence to the deceased.
30. The admitted facts as regards the plea of the insurer of the offending lorry that the driver of the said lorry did not possess a valid and effective driving licence as on the date of accident, except in the statement made in the written statement, nothing is elicited from the evidence of R.W.2, CPI, nor, is there any material in the charge sheet Ex.P.2 over allegations of violation of Section 3(1) or Section 181 of the Act for not possessing effective and valid driving licence. In the deposition of RW-1, the Law Officer of the insurer, makes no reference to proof of alleged plea that the driver did not have a valid driving licence. Ex.P.2 in MVC No.89/2011 discloses the name of the accused driver of the lorry as 33 Abdul Gafoor, S/o Abdul Hameed, charged with offence under the Indian Penal Code. In Ex.R.3, letter of the Assistant Regional Transport Officer, Bhalki Division, Bidar, dated 04.07.2012, particulars of driving licence of the holder by name Abdul Gaffoor, S/o Abdul Mohit Qureshi, resident of Mohalla Galli, Humnabad, District: Bidar, is certified to have held driving licence to drive LMV, MGV and HGV. Therefore, there is a clear crises over identity of the driver of the offending vehicle, since the names in the charge sheet and in the communication, Ex.R.3 differ and hence no credence could be attached to Ex.R-3 to say that the person mentioned therein was the driver of vehicle and did not possess effective driving licence on 24.07.2010. In the absence of examining the author of Ex.R.3 or any other office of the Regional Transport Authority, muchless, evidence of the driver/ accused of the commission of the offence under IPC who was charge sheeted, there is no material whatsoever to discharge the burden cast upon 34 Insurance Company under Section 149(1) of the ‘Act’ to prove that driver of the offending vehicle did not possess effective and valid driving licence as on the date of accident.
31. It is useful to refer to the decision of the Apex Court in Rukmini vs New India Assurance Co.8 though with regard to Section 96(2)(b)(ii) of the MV Act, 1939 by observing thus: “3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW1 who was the Inspector of Police, stated in his examination–in-chief. “My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it.” In his cross- examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was 8 (1998)9 SCC16035 cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2) (b) (ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs.” (emphasis supplied) 32. In similar though not identical circumstances in M/s. Oriental Insurance Company Limited vs Ramesh B. Jain and Others9, in the facts obtained therein, it was observed that evidence also does not come to the aid of appellant to discharge its primary duty to establish that there was a breach of the terms of the policy in order to secure benefit of sub-section (2) of Section 149 of the Motor Vehicles Act,1988.
33. Regard being had to burden cast upon the insurance company under Section 149(2) of the Motor Vehicles Act, 1988 which when not discharged, MACT36was fully justified in fastening liability on the insurer of the offending lorry to pay compensation.
34. First respondent in MFA No.31412/2013 being the claimant injured since served with notice and is unrepresented, the finding the MACT in this order over contributory negligence, remains undisturbed.
35. The claim for enhancement of compensation by the claimant in MVC No.969/2010 being appellants in MFA No.31483/2013 is on the premise that: (a) MACT was not justified in deducting 1/3rd towards personal and living expenses of the deceased when he had left behind a widow , unmarried daughter and three sons all students in the age group of 18-21; (b) that the award of `15,000/- towards loss of consortium for the widow is on the lower side; (c) award of `10,000/- to the children towards love and affection is on the lower side, award of 9 ILR2003KAR516437 `10,000/- towards funeral expenses is also on the lower side.
36. Learned counsel for insurance company seeks to sustain the judgment and award over quantum of compensation as well merited, fully justified and not calling for interference.
37. Ex.P-7 – salary certificate of the deceased Manohar – driver of the NEKRTC bus discloses that in the month of April, 2010 he was paid a gross salary of `23,738/- and deducting `200/- towards Professional Tax, net salary of `23,538/- was paid. Deceased was aged 46 as on the date of accident and death. Adding 30% of the salary towards ‘loss of future prospects’, equivalent to `7061/-, total salary is `30,599/-. Deceased having left behind a widow and four children, one of which is an unmarried daughter, while other three are students, we think it appropriate to deduct 1/4th towards personal expenses of the deceased. 38 Monthly loss of dependency is `22,949.15, rounded off to `22,950/- and annual loss of dependency is `2,75,400/-. Applying multiplier ‘13’ for age 46 of deceased, total loss of dependency is `35,80,200/- as against `30,12,100/- awarded by MACT and therefore, claimants are entitled to difference of `5,68,100/-.
38. Regard being had to decision of Apex Court in Munnalal Jain vs Vipin Kumar Sharma10, a widow is entitled to, in the least, `50,000/- towards ‘loss of consortium’ as against `15,000/- awarded by MACT and therefore she is entitled to balance of `35,000/-.
39. Children of whom one is an unmarried daughter and three sons are students, award of `10,000/- towards ‘love and affection’ is frugal. We think it appropriate to award `20,000/- in addition which is just and reasonable entitling the said appellants-2 to 5 an additional sum of `20,000/-. 10 ((2015)6 SCC347 39 40. Award of compensation of `10,000/- towards ‘funeral expenses’ is on the lower side and in the light of aforesaid decision, we think it appropriate to add another sum of `10,000/-.
41. We find no infirmity in the award of `10,000/- towards ‘loss of estate’ by MACT.
42. In the result, MFA No.31686/2013 and MFA No.31412/2013 filed by Insurance Company are dismissed. Amount in deposit is ordered to be transmitted to the MACT forthwith.
43. MFA No.31483/2013 is allowed in part. Finding on contributory negligence is set aside. Actionable negligence is attributed to the driver of offending lorry and claimants are entitled to ` 6,33,100/- in addition to what is awarded by the MACT. 40 44. As regards apportionment of compensation towards ‘loss of dependency’ shall be in the following manner: Widow Unmarried Daughter - - 50% 20% 3 sons (equally) - 10% As regards deposit, to be effected as directed in the judgment and award of the MACT. Sd/- JUDGE Sd/- JUDGE *sp /kcm