Smt. Usha Singh vs Abhay Naryan Singh & Another
2017 Latest Caselaw 4304 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved
 
Court No-41
 
Case :- FIRST APPEAL FROM ORDER No. - 1231 of 2008
 
Appellant :- Smt. Usha Singh
 
Respondent :- Abhay Naryan Singh & Another
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Bhartendu Pathak,Ram Singh,Satya Deo Ojha
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

(Delivered by Hon'ble Krishna Singh,J.)

This appeal has been filed by the appellant / claimant Smt. Usha Singh being aggrieved against the impugned judgment and award dated 17.10.2007 passed by the Motor Accident Claims Tribunal, Allahabad in M.A.C.P. No.671 of 2003 (Smt. Usha Singh vs. Abhay Narayan Singh & others) awarding compensation to the tune of Rs.5,16,248/- alongwith interest @ 6% per annum to the claimant inter-alia on the ground that the compensation awarded by the Tribunal is inadequate and also that the Tribunal has not calculated the compensation as contemplated in law.

Brief facts giving rise to the instant appeal are that on 1.9.2003 deceased Tribhuwan Singh alongwith Sanjay Singh was going from Dhokri to Saidabad by motor cycle bearing registration No. UP-70 Y/5388. As soon as they reached on G.T. Road at about 3:00 P.M., a bus bearing registration No. UP-65 H/8331 which was driven rashly and negligently dashed motor cycle from behind on account of which deceased died on spot. Deceased was pillion driver. The FIR of the said accident was lodged at Police Station-Handia, Allahabad. Post-mortem of the deceased was conduced by the Doctor. After investigation in Case Crime No.351 of 2003, police has submitted the charge-sheet against the driver of the said bus. At the time of accident said bus was insured with the respondent No.2. The claim petition was filed by the appellant / claimant with the allegation that she, her children and mother-in-law are the legal representative / dependent of the deceased. At the time of accident deceased was working in Bharat Sanchar Nigam Ltd, Pipariya, District-Hosangabad, (M.P.) as Senior T.O.A. Deceased was aged about 44 years and was the sole bread earner of the family. Therefore, a sum of Rs.29,00,000/- has been claimed as compensation.

The said claim petition were contested by the owner of the said bus as well as the Insurance Company of the offending bus denying the allegations by filing written statement. Owner of the bus pleaded that accident in question had not occured due to the rash and negligent driving of the driver of the bus and in any view of the matter since the bus was duly insured with the appellant Insurance Company and the driver was having a valid driving license, the liability was on the Insurance Company. It was pleaded on behalf of the appellant Insurance Company that the claim has been filed on false and concocted story. Accident in question had occurred due to rash and negligent driving of the driver of the motor cycle as such the claim petition was liable to be dismissed.

To support the allegation made in the claim petition the appellant / claimant herself appeared in the witness-box as PW-1 and also produced Sanjay Kumar Singh as PW-2. The claimant has also filed a copy of FIR, site plan, charge-sheet, post-mortem report, educational and income certificate of the deceased.

Respondent owner of the said bus has filed a copy of registration certificate, fitness certificate, permit and Insurance Policy of the bus. Investigator, Shri Prakash Srivastava was examined as DW-1 on behalf of the appellant Insurance Company.

We have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant / claimants has submitted that the deceased was aged about 44 years while awarding compensation the Tribunal has wrongly applied the multiplier of 11 and according to the proposition of law laid down in the case of Smt Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (2) TAC 677 (SC), the multiplier of 14 should be applied to award the just and reasonable compensation.

Learned counsel has further submitted that while awarding the compensation, the Tribunal has wrongly deducted one-third income of the deceased towards personal and living expenses of the deceased and in view of Sarla Verma's Case (supra) deduction should be made to the extent of one-fourth income of the deceased because appellant and four other members of her family are dependent / legal representative of the deceased.

Learned counsel has further submitted that at the time of accident deceased was working in Bharat Sanchar Nigam Ltd. and getting salary of Rs.11,668/- per month. While awarding compensation, the Tribunal has not taken into account the future prospects of the deceased and in view of Sarla Verma's Case (supra) addition of 30% of actual salary to actual salary income towards the future prospects should be made by the Tribunal for awarding just and reasonable compensation.

Learned counsel has further submitted that it was a case of composite negligence. Since, the deceased was pillion rider on motor-cycle and had not contributed to the accident. The legal representative of the deceased are entitled to recover the entire compensation from any of the joint tort feasors and as such the legal representative of the deceased including appellant / claimant are entitled to recover the entire compensation from the owner of the offending bus and its Insurance Company. Learned counsel for the appellant / claimant has further submitted that compensation awarded by the Tribunal is inadequate, the award therefore, is liable to be enhanced.

Per contra, learned counsel for the respondent Insurance Company has submitted that impugned judgment and award passed by the Tribunal is just and reasonable and therefore, does not warrant interference for enhancement of comepensation as claimed by the appellant / claimant.

In the case of Khenyei vs. New India Assurance Company Ltd. and others 2015 (2) TAC 677 (SC) Hon'ble Apex Court has held that:-

(i) There is a difference between contributory and composite negligence. In the case of contributory negligence a person, who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence, whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons is entitled to sue both or anyone of the joint tort feasors and to recover the entire compensation as liability of joint tort-feasors is joint and several.

(ii) In the case of composite negligence, a person may took compensation between two tort-feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option damage from any of them.

(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient. It is open to the Court/Tribunal to determine inter-se extent of composite negligence of the drivers. However, determination of extent of negligence between the joint tort feasors is only for the purpose of their inter-se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent. It has satisfied liablity of other. In case both of them have been impleaded and the apportionment / extent of their negligence has been determined by the Court/Tribunal in main case. One joint tort feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate to support of Court/Tribunal to determine the extent of composite negligence of the drivers of the two vehicles in the absence of impleadment of other joint tort feasors. In such a case impleaded joint tort feasors should be left, in case he so desires to sue the other joint tort feasors in independent proceedings after passing of the decree or award.

The Tribunal on the basis of oral and documentary evidence available on record has held that deceased was pillion rider on motor-cycle and the accident in question had occurred on account of rash and negligent driving of the drivers of said bus as well as motor-cycle. Although, a sum of Rs.10,13,496/- was assessed as compensation by the Tribunal but in view of the matter that driver of the motor-cycle was also guilty of 50% contributory negligence, the Tribunal found that the claimants are entitled only half of the assessed amount of compensation i.e. Rs.5,06,748/-. Other claims were also awarded by the Tribunal being Rs.2,000/- for funeral expenses, Rs.5,000/- for loss of consortium and Rs.2,500/- for loss of estate. Thus, a total sum of Rs.5,16,248/- was awarded as compensation to the appellant / claimants alongwith interest at the rate of 6%.

It is evident from the evidence available on record that when the said bus collided with the said motor-cycle on G.T. Road, the deceased was pillion rider on the said motor-cycle and deceased had not contributed to the accident. In our opinion accident in question took place due to composite negligence on the part of both the drivers of the said bus as well as motor cycle respectively.

In view of the law laid down by Hon'ble Apex Court in the case of Khenyei (supra) and considering entire facts and circumstances of the case, we are of the considered view that entire compensation assessed by the Tribunal / Court could be recovered by the legal representative / dependent of the deceased including appellant / claimant from any one of the joint tort feasors as the liability of joint tort feasors is joint and several and it was not permissible for the Tribunal to apportion the compensation to be payable by the two joint tort feasors vis-a-vis the claimant. We are also of the view that finding recorded by the Tribunal in respect of recovery of 50% compensation from the owner of the said bus and its Insurance Company is wrong and contrary to the law laid down by Hon'ble Apex Court.

In the facts and circumstances of the case, it is made clear that after making the entire payment to the claimants, respondents no.1 and 2 can recover the 50% amount of compensation from the other joint tort feasors by means of an independent proceedings in case they so desires.

In the case of Sarla Verma (supra), Hon'ble Apex Court in Para No.11, 14 and 21 held as under:-

11. We are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax'. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years.

14. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

21. We, therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.

It is not in dispute that decased was aged about 44 years. The Tribunal while awarding compensation has applied the multiplier of 11. In view of the law laid down by Hon'ble Apex Court in the case of Sarla Verma (supra), we find that the multiplier of 14 should be applied, which was appropriate in the facts and circumstances of the case. Since, the Tribunal has failed to apply the correct multiplier, we accordingly provide that the multiplier of 14 should be applied.

Admittedly, the deceased has left behind 5 dependents / legal representatives including appellant / claimant. In view of the law laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra), we also find that deduction of one-fourth from income of the deceased towards personal and living expenses of the deceased ought to have been made. We therefore, change the deduction of one-third made by the Tribunal to the extent of one-fourth. In view of the above, we are of the considered view that deduction made by the Tribunal is wrong and contrary to the law laid down by Hon'ble Apex Court.

It is proved from the evidence adduced by the appellant / claimants that deceased was working in Bharat Sanchar Nigam Ltd., Pipariya, District-Hosangabad (M.P.) and aged about 44 years and his annual salary (after deduction of Income Tax) was Rs.1,42,464/- per annum. It appears from the record that while awarding the compensation, the Tribunal has not taken into account the future prospects of the deceased. In view of the law laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra), we are of the considered view that in the facts and circumstances of the case an addition of 30% of actual salary to actual salary income of the deceased towards future prospects should be made to award the just and reasonable compensation to the appellant / claimants. In view of the above, we are also of the considered view that the Tribunal has committed illegality in not awarding the compensation towards future prospects of the deceased.

In view of the discussion made above, we are of view that compensation awarded by the Tribunal is inadequate and it should be enhanced.

Accordingly, the compensation payable to the appellant / claimants is worked out as under:-

Age of the deceased at the time of accident

42 years and 16 days

Multiplier with reference to the age of deceased, as per Sarla Verma's case

Annual salary of the deceased.

(After deduction of Income Tax )

Rs.1,38,203/-

Future prospects of the deceased

(30% of the net annual salary income)

Rs.41,461/-

Net income of the deceased

Rs.1,38,203/-

+Rs. 41,461/-

Rs.1,79,664/-

1-4th deduction towards personal and living expenses of the deceased

Rs.1,79,664/-

-Rs. 44,916/-

Rs.1,34,748/-

Loss of dependency

Rs.1,34,748 x 14

= Rs.18,86,472/-

Compensation already awarded by the Tribunal

Rs.5,16,248/-

Amount enhanced by this Court

Rs.18,86,472/-

-Rs. 5,16,248/-

Rs.13,70,224/-

On the basis of discussion made above, the present appeal is allowed by modifying the impugned judgment and award by increasing the compensation awarded from Rs.5,16,248 to Rs.18,86,472/-. The appellant / claimant will be entitled to enhanced amount of award Rs.13,70,224/- in addition to what is already awarded by the Tribunal alongwith interest at the rate of 6% per annum from the date of filing of the claim petition till its payment. The increase in compensation as awarded by us will be taken by the appellant / claimant Smt. Usha Singh exclusively. The said sum shall be invested for three years in the maximum interest bearing scheme in the name of Smt Usha Singh.

Respondent No.2 the Insurance Company is directed to pay the enhanced amount of compensation to the appellant / claimant alongwith interest within a period of three months from the date of receipt of certified copy of this order in the form of account payee cheque.

Parties to bear respective costs.

	         (Krishna Singh,J.) 	    (Satyendra Singh Chauhan,J.)
 
Order Date :- 13.9.2017 
 
S Rawat