Court established shared liability in accident case, determining 40% contributory negligence by deceased, thus reducing compensation from Rs.7,38,000 to Rs.4,42,800.

JUDGMENT :

C M Joshi, J.

This appeal by the Insurance Company is directed against the judgment and award dated 28-7-2017 passed in MVC No. 876/2014 by the learned Senior Civil Judge and MACT, Channagiri, whereby a sum of Rs.7,38,000/- has been awarded to the petitioners as compensation on account of the death of the deceased Kumar in the road traffic accident.

2. It is the case of the petitioners that, on 7-1-2014 at about 12.00 p.m. when their son Kumar was going on a motor cycle bearing No. KA.17.EL.4339 from Navilehall village towards Santhebennur, the respondent No. 1 drove the tractor bearing No. KA.17.T.6071-6072 belonging to respondent No. 2 in a rash and negligent manner and dashed against the motorcycle of Kumar. As a result, Kumar suffered grievous injuries and died while being taken to the hospital. It was further submitted that, deceased was aged about 25 years, was the sole bread earner of the family, earning Rs.7,000/- per month. Further, they contended that the tractor trailer was insured with respondent No. 3. Therefore, they filed the claim petition claiming compensation of Rs.20,00,000/- from the respondent Nos. 1 to 3.

3. On issuance of notice by the Tribunal, respondent Nos. 1 to 3 have appeared before the Tribunal. Respodnent Nos. 1 and 2 filed their objection statement contending that the petition is not maintainable and is liable to be dismissed on the ground that the accident occurred due to negligence of deceased and further submitted that the Tractor trailer were insured with the respondent No. 3 and if the Court comes to conclusion that petitioners are entitled for compensation, then the liability has to be fastened on respondent No. 3 and prayed to dismiss the petition.

4. The respondent No. 3- Insurance Company has filed the objection statement contending that the accident was due to the rash and negligent driving of the deceased and he was not having a valid driving licence and also insurance. It was further contended that, police have filed charge sheet against the deceased and he had been arrayed as accused No. 2 and therefore, it is not at all liable to indemnify the respondent No. 2 and that the claim is highly exorbitant. It was further contended that the tractor driver was falsely implicated to claim monetary benefits and the tractor has been used for non-agricultural purpose, there was breach of policy conditions and hence, prayed to dismiss the petition.

5. The Tribunal on the basis of the above pleadings, framed appropriate issues and the petitioner No. 1 was examined as PW1, and Exs.P1 to P9 were marked in evidence. Respondents have examined two witnesses as RWs- 1 and 2 and got marked Exs. R1 to R3.

6. After hearing the arguments, the Tribunal awarded compensation of Rs.7,38,000/- to the petitioners under the following heads together with interest at 6% p.a. and directed the insurance Company to deposit the same.

7. Being aggrieved by the said judgment and award, the Insurance Company has approached this Court in appeal contending that, the Tribunal has not considered the facts borne out of the police papers, wherein the deceased was found to be a contributor for the negligence since he did not possess a valid driving licence to drive the motor cycle and that there were two pillion riders on the motor cycle.

8. On issuanc