(Prayer: This MFA is filed u/s 173(1) of MV Act, praying to Modify/set-aside the judgment and award dated 01.06.2018, in MVC No.1750/2016 passed by the learned MACT ii, i Additional District & Sessions Judge, D.K. Mangaluru and claim petition be allowed as prayed in this appeal for by allowing this appeal in the ends of Justice.)

Oral Judgment:

1. This appeal is filed by the claimant seeking for higher compensation challenging the judgment and award dated 01.06.2018 passed in MVC.No.1750/2016 by the I Additional District & Sessions Judge and II Additional MACT, Mangalore, D.K., (for short 'Tribunal').

2. Though this appeal is listed for orders, with the consent of the learned counsel for the parties, it is taken up for final disposal.

3. Sri.Ravishankar Shastry G., learned counsel appearing for the appellant submits that the Tribunal has committed a grave error in appreciating the evidence of PW3, who is an eyewitness to the accident and has erroneously recorded a finding that the deceased was negligent to the extent of 25% and had contributed to the accident, thereby saddled the liability accordingly. It is submitted that the Tribunal has further erred in assessing the income of the deceased at Rs.10,000/- per month by ignoring the oral evidence of PW2 and documentary evidence marked at Exs.P14 and P15. It is further submitted that the Tribunal has not awarded any compensation under the head of loss of future prospects, as the deceased was aged about 57 years. Therefore, the claimant, being the wife of the deceased, is entitled to an additional 10% of the assessed income towards loss of future prospects. Hence, he seeks to reassess the compensation by allowing the appeal.

4. Per contra, Sri.Jwalakumar, learned counsel appearing for respondent No.2 supports that impugned judgment and award of the Tribunal and submits that the Tribunal after considering the oral evidence of PW1, part of cross-examination of PW2 and Ex.P6, has recorded a clear finding that the deceased, without any due care, crossed the road negligently, which resulted in the accident. Hence, the finding with regard to the contributory negligence does not call for any interference or modification. Insofar as the income of the deceased, the appellant has failed to produce any bank statement for having received the amount of Rs.12,000/- per month. Therefore, the Tribunal has rightly assessed the income of the deceased at Rs.10,000/- per month and has awarded just compensation under the other heads, which does not call for any modification. Hence, he seeks to dismiss the appeal.

5. I have heard the arguments on both the sides and meticulously perused the material available on record including the Tribunal records.

6. Records indicate that the appellant, the wife of the deceased Sri.Acchabba, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.30,00,000/- for the death of her husband in a road accident dated 12.10.2016. In order to prove the claim, the appellant examined herself as PW1, Sri.B.M.Rafiq, the employer of the deceased as PW2 and Sri.Mohamad Sameer, an eye witness to the accident as PW3 and got marked ExP1 to ExP15. The respondent did not adduce any oral evidence; however, with the consent of the parties got marked a copy of the insurance policy as Ex.R1. The Tribunal on appreciation of the oral and documentary evidence on record, recorded a finding that the deceased Sri.Acchabba was negligent and had contributed to the occurrence of the accident to the extent of 25% and awarded total compensation of Rs.6,02,109/- along with interest at 9% per annum from the date of the petition till realization.

7. The records indicate that the deceased was working as a beedi checker and was stated to be earning Rs.12,000/- per month. In order to prove the income of the deceased, the claimant examined PW2 - Sri.B.M.Rafiq, the employer of the deceased, who deposed before the Tribunal that he used to pay the deceased a sum of Rs.12,000/- per month by way of cash. Through PW2, the claimant got marked Ex.P14, the salary slip and Ex.P15, a copy of the license of PW2. In view of the aforesaid evidence with regard to the income of the deceased, I am of the considered view that the Tribunal has committed an error in assessing the income of the deceased at Rs.10,000/- per month. By considering oral evidence of PW2 and the documentary evidence at Exs.P14 and P15, the income of the deceased is reassessed at Rs.12,000/- per month. The Tribunal, based on the pleadings and evidence on record, considered the age of the deceased as 58/59 years as on the date of the accident. Therefore, the claimant would be entitled to an addition of 10% of the assessed income under the head of loss of future prospects and the appropriate multiplier applicable would be 9. Hence, the appellant-claimant is entitled to compensation towards loss of dependency as under:

               Rs.12,000 + 10% X 12 X 9 - 1/3 = Rs.9,50,400/-

8. Insofar as the finding of the Tribunal with regard to the contributory negligence of the deceased is concerned, it is to be noticed that the jurisdictional police, after completion of the investigation, have filed a charge sheet against the rider of the motorcycle. A perusal of Ex.P6, the sketch and Ex.P5, the spot mahazar and a corroborative reading of these documents along with the oral testimony of PW3, who is an eye witness to the accident, clearly indicate that the deceased Sri.Acchabba has alighted from the bus, crossed the road and was standing towards the northern edge of the road i.e., on the mud road after the main road. While he was standing there, the rider of the motorcycle came at a high speed and dashed against the deceased, resulting in the accident. The Tribunal's finding based on the cross examination of PW3, that the deceased was required to observe as to whether any vehicles were coming from either direction before crossing the road, is perverse. This is for the simple reason that PW3 in his evidence, has clearly deposed before the Tribunal that the deceased was standing at the time when the accident occurred and not crossing the road. Hence, any admission in crossexamination of PW3 with regard to the duty of care, to be taken by a pedestrian while crossing the road has no bearing and such statement of PW3 is a general statement as he has deposed that the deceased was standing at the time of the accident and not crossing the road. Placing reliance on such evidence by the Tribunal is therefore perverse and required to be interfered. The Tribunal has committed a grave error in also placing reliance on the evidence of PW1, who admittedly was not present at the time of the accident and her evidence and any admission elicited in her cross-examination, would only amount to hearsay.

9. In my considered view, the Tribunal has gravely erred in appreciating the oral testimony of PW3 and the documentary evidence at Exs.P5 and P6 i.e. the spot mahazar and the sketch, and in recording a finding that the deceased had contributed to the accident. Such a finding is therefore liable to be interfered with. For the aforementioned reasons, the finding of the Tribunal attributing contributory negligence to the deceased to the extent of 25% is hereby set aside.

10. The compensation awarded by the Tribunal under the head of medical expenses remains unaltered. The appellant would also be entitled to a sum of Rs.16,500/- under the head of ‘loss of estate’ and Rs.16,500/- under the head of ‘funeral expenses & transportation of dead body’ including 10% escalation. The appellant-claimant is also entitled to a sum of Rs.44,000/- towards loss of consortium including 10% escalation.

11. Thus, in all, the appellant-claimant shall be entitled to the modified compensation under the following heads:



Thus, the claimants shall be entitled to a total compensation of Rs.10,40,212/- as gainst Rs.8,02,812/- awarded by the Tribunal.

12. In the result, this Court proceeds to pass the following:

                                                       ORDER

               a) Appeal is allowed in part.

               b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants would be entitled to total compensation of Rs.10,40,212/- as against Rs.8,02,812/- awarded by the Tribunal.

                c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

               d) The Insurance Company shall deposit the compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

               e) The apportionment, deposit and disbursement shall be made as per award of the Tribunal.

               f) Registry shall transmit the records to the Tribunal forthwith.

               g) Draw modified award accordingly.