DONDIBA Vs. JANARDHAN J. EJAGER

JUDGEMENT

(1.) These two miscellaneous first appeals arise out of the judgment and award in MVC No.1323/2011, therefore, these matters are clubbed, heard and disposed of by this common judgment. The appeal filed by the claimants seeks enhancement of the compensation, while the appeal preferred by the Insurance Company raises a ground regarding contributory negligence in addition to challenge raised to the quantum of award.

(2.) The undisputed facts leading to the filing of the claim petition is that on 11.11.2010 at about 10.00 p.m., the deceased Namadev was proceeding on his motor cycle and dashed against a stationed Container vehicle bearing Reg.No.MH-04/F-2977, on the hind side. The deceased suffered grievous injuries and succumbed to the injuries. It was contended by the claimants, who are the aged parents, wife and three children, that the deceased was serving in the Agricultural Department and was earning salary of Rs.15,000/- per month. The Tribunal having considered the evidence on record, held that the deceased was earning gross salary of Rs.17,545/- and after deduction of the professional tax, he was earning Rs.17,345/-. Having regard to the age of the deceased who was 45 years at the time of the unfortunate accident, applied multiplier of '14', deducted 1/5th of the income towards the personal and living expenses of the deceased having regard to the fact that the deceased was taking care of his aged parents, wife and three children. 30% of the income was added additionally towards future prospects. Towards the other conventional heads a sum of Rs.1,10,000/- was awarded.

(3.) Since the Insurance Company has raised the issue of contributory negligence, we shall proceed to deal with the said issue before dwelling upon the issue regarding enhancement of compensation. The learned counsel for the Insurance Company submits that the Container was parked to the extreme left side of the highway at a distance of 200 meters from SIMCO Company. He further submits that the Tribunal has rightly discarded the evidence of PW-2 on the ground that he is not an eyewitness, even according to the statement made at Ex.R-2, before the Investigating Officer that he received a call at about 1.45 a.m. regarding the accident and he rushed to the hospital and therefore it is clear that he had not witnessed the accident. The learned counsel submits that as per the spot panchanama marked at Ex.P-5, translated and marked as Ex.P-6, the width of the road was 25 feet and on either side there was 5 feet of kacha road. Having regard to the width of the vehicle, it is clear that the vehicle was parked to the extreme left side on the kacha road and probably, a portion of the vehicle was on the tar road. It is further submitted that the FIR shows that the accident was caused due to the rash and negligent driving of the two wheeler and after police investigation, a charge sheet was filed against the deceased rider of the two wheeler. The learned counsel further submits that the vehicle was parked on the extreme left side with the indicators on and all precautions were taken by the driver of the vehicle.