M N RAJAN Vs. KONNALI KHALID HAJI

JUDGEMENT

(1.) THE claimants in a motor vehicle compensation case being aggrieved by the judgment and award dated 28. 7. 2001 passed in M. V. C. No. 708 of 1995 on the file of the court of Principal civil Judge (Senior Division) and Addl. M. A. C. T. , Mandya (the M. A. C. T. for short) have preferred this appeal under section 173 (1) of the Motor Vehicles Act, 1988 (for short the Act ). The M. A. C. T. by the impugned award has awarded compensation of Rs. 50,000 along with 9 per cent interest to the appellants under no fault liability and dismissed the claims of the appellants for compensation based on actionable negligence.

(2.) THE facts of the case in brief are as follows: On 2. 6. 1995 at about 5. 15 p. m. , the deceased M. R. Vani was travelling on rx Yamaha motor cycle as pillion rider from Mandya towards Mysore on the left side of the road and when they were going near Shambulingeswara Temple, the veil of the deceased was stuck with the back wheel of the motor cycle and on account of that, she fell down. At that time, the lorry bearing the registration No. KL 10-C 5616 came from Bangalore side driven in a rash and negligent manner and ran over the body of M. R. Vani. On the date of the accident, the deceased was hale and healthy and she was employed as typist-cum-receptionist in M. M. Equipments and she was also working as music teacher and was earning monthly income of Rs. 5,000. The claimant Nos. 1 and 2 are father and mother of the deceased whereas the claimant No. 3 is the brother of the deceased and all of them were entirely depending upon the income of the deceased for their livelihood. With the above factual matrix m. V. C. No. 7 of 1995 was filed before the m. A. C. T. claiming total compensation of rs. 15,00,000.

(3.) ALTHOUGH the notice was served on respondent No. 1, owner of the vehicle, he remained unrepresented and, therefore, he was placed ex pane. The respondent No. 2, insurance company, put in appearance through its counsel and filed written statement, inter alia, admitting that the vehicle involved in the accident was insured with it on the date of accident but denied all other allegations in the claim petition. It was also contended by the respondent No. 2 that since the claimants have not made the owner and the insurer of the motor cycle as parties to the petition, the petition is bad for non-joinder of necessary parties. It was also contended that the accident occurred due to rash and negligent driving of the motor cycle and in no way the driver of the lorry contributed to the accident and, therefore, the respondent No. 2 is not liable to pay any compensation to the petitioners. 4. On the basis of the above pleadings, the M. A. C. T has framed the following issues: