The apportionment of negligence and the assessment of compensation under the Motor Vehicles Act, 1988.

JUDGMENT

B.VEERAPPA,J. - These Miscellaneous First Appeals are filed against the common judgment and award dtd. 1/9/2016 made in MVC No.5424/2014 on the file of the Member, Principal Motor Accident Claims Tribunal, Bangalore awarding total compensation of Rs.9,97,252.00 and after deducting 25% towards the contributory negligence on the part of the deceased, holding that the claimants are entitled for compensation of Rs.7,48,000.00 with interest at the rate of 9% per annum from the date of petition till realization.

2. MFA No.8355/2016 is filed by the claimants for setting aside the contributory negligence on the part of the deceased and also for enhancement of compensation. MFA No.7842/016 is filed by the Insurance Company for setting aside the impugned judgment & award passed by the Tribunal on the ground that the insured car has been falsely implicated to secure the compensation from the Insurance Company illegally.

3. It is the case of the claimants that they are the wife and children of the deceased Padmanabhan. They have filed the claim petition under the provisions of 166 of the Motor Vehicles Act claiming compensation of Rs.30,00,000.00 contending that on 14/10/2014 at about 8.15 p.m. when the deceased Padmanabhan was crossing Hosur road near Patiyala Bank, Singasandra by observing traffic on the road, at that time, the driver of the car bearing Registration No.KA-01-MC4272 came from Kudlu gate towards Electronic city on Hosur road in a rash and negligent manner and dashed against the deceased. Due to the impact, the deceased fell down and sustained grievous injuries. Immediately after the accident, the deceased was shifted to Blossom hospital and then shifted to Sparsh hospital and on the way to the said hospital, he succumbed to the injuries. Post-mortem was conducted in the Victoria hospital and body was handed over to the family members of the deceased to perform the last rites and they have spent Rs.1,00,000.00 for funeral and obsequies ceremonies. It is further case of the claimants that as on the date of the accident, the deceased was hale and healthy and he was aged about 48 years and was working as weaver and was earning Rs.10,000.00 per month. Due to the demise of the deceased, the claimants have lost the only earning member of the family. The accident occurred due to the rash and negligent driving of driver of the offending vehicle and the jurisdictional Police have registered the case against him under the provisions of Ss. 279 and 304A of IPC and Sec. 134(A and B) and 187 of the Motor Vehicles Act. Thereby, the 1st respondent being the insurer and the 2nd respondent being the owner of the offending vehicle are jointly liable to pay compensation.

4. Inspite of service of notice, the 2nd respondent/owner remained absent and he was placed exparte before the Tribunal. The 1st respondent/Insurance company filed the written statement and denied the petition averments. However, admitted the issuance of the policy in favour of the 2 nd respondent and contended that the liability, if any is subject to the terms and conditions of the insurance policy. Further, the 2nd respondent has denied the negligence on the part of the insured car driver and contended that the accident has occurred due to the negligence on the part of the deceased and the owner of the car has to prove that the said offending vehicle was having valid Driving Licence, Permit, Insurance etc., and the driver of the car was having valid and effective Driving Licence. It is further contended that the accident has occurred due to the negligence on the part of the deceased himself and the offending vehicle was not at all involved in the accident. Therefore sought to dismiss the claim petition.

5. Based on the aforesaid pleadings, the Tribunal framed the following issues :

1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 14/10/2014 at about 8.15 p.m., Near Patiyala Bank, Hosur main Road,