In The High Court Of Judicature At ... vs Unknown
2009 Latest Caselaw 60 Bom

                                     1

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                 NAGPUR BENCH : NAGPUR




                                                                   
                                           
     First Appeal No. 1058 of 2007

     Appellant       :   The New India Assurance Company




                                          
                         Limited, Amravati, through its

                         Regional Manager, Nagpur

                         versus




                                 
     Respondents     :

ig 1. Smt Shobha wd/o Panjabrao Dhurve,

aged about 38 years,

2. Ku Sarika d/o Panjabrao Dhurve,

aged about 23 years,

3. Ravi s/o Panjab Dhurve, aged about

18 years,

4. Vijay s/o Panjabrao Dhurve, aged

about 18 years,

5. Ku Ashvini d/o Panjabrao Dhurve,

aged about 15 years,

6. Bapurao Domaji Dhurve, aged about

83 years,

7. Sau Mainabai Bapurao Dhurve, aged

about 78 years,

All residents of Rajurwadi, Tahsil

Morshi, District Amravati

8. Prakash Shriram Kakade, aged adult,

resident of Rajurwadi, Tahsil Morshi,

District Amravati

9. The Oriental Insurance Company

Limited, through its Divisional

Manager, Rajapeth, Dist. Amravati

ig 10. Balwinder Singh Sukhdeo Singh

Sinddhu, aged adult, resident of New

Loha Mandi, Indore, MP.

11. Madhuradas Gopal Thakkar, aged

adult, resident of New Loha Mandi,

Indore, MP.

Mr Mahesh Joshi, Advocate for appellant

Mr L.S. Patil, Advocate for respondents no. 1 to 7

Mr S.K. Pardhy, Advocate for respondent no.

                             Coram :       A.P. Bhangale, J





                             Dated :       9th December 2009







     Judgment.

     1.          The    appellant    has     challenged           validity          and




                                                                         

legality of the judgment and Award dated 30.7.2007 passed

by the Member, Motor Accident Claims Tribunal, Amravati

in MACP No. 118 of 2004 whereby the Tribunal awarded

compensation in the sum of Rs. 400,000/- inclusive of no

fault liability along with interest at the rate of 7.5%

per annum from the date of petition till realisation.

The amount of compensation was apportioned in the ratio

of 50 : 50 between owner/driver of the offending vehicle

and insurers of the offending motor vehicle Jeep bearing

registration No. MH-27-H-1034 driven at a high speed and

owner/driver/insurer (appellant) of the Truck bearing

registration No. MP-09-KB-1907 kept standing on the road

without tail lights on.

2. On 20.12.2003 at about 09.30 p.m. Panjabrao

Bapurao Dhurve, aged about 40 years, was travelling by

jeep (owned by his friend) bearing No. MH-27-H-1034 from

Dharni to Amravati. The accident occurred while jeep was

on Paratwada-Amravati Road in front of Fatima Convent

when it had dashed against the Truck bearing No. MP-09-

KB-1907 kept standing on the road without tail lights on.

The Jeep driver drove in high speed and jeep was dashed

against the Truck from its back-side. In the result,

Panjabrao Bapurao Dhurve died on the spot due to

negligence of drivers of both the motor vehicles.

3. Claimants contended that the deceased Punjabrao

was the only earning member of their family and used to

earn Rs. 3000/- per month by doing agricultural labour

work and used to work on his own field and taking crops

of about Rs. 50,000/- per year.

                       ig                        He was ambitious, hale

     and    hearty;    dynamic,       enthusiastic          having         pleasant

personality without any ailment or vices and had planned

to built high living standard for the family, but on

account of the accident, entire planning collapsed and

claimants-dependents lost their support and beloved

family member and suffered irreparable loss.

4. The claimants claimed compensation in the sum

of Rs. 6,75,000/- on account of loss of income for

future; loss of amenities of life and also loss of love

and affection; pains and sufferings; loss of consortium;

funeral expenses etc. Interest on award amount was

demanded at the rate of 18% per annum with costs.

5. Respondents insurer and owner of offending

motor vehicle resisted the claim by their written

statements and denied liability to pay compensation.

6. Claimant Smt Shobha widow of deceased deposed

in support of claim to establish that deceased Punjabrao

left behind four children taking education and parents

apart from her and that he was travelling in Jeep No.

MH27-H-1034 belonging to his friend gratuitously without

paying any fare and he died due to accident which

occurred due to negligence and fault of both offending

vehicles. Witness No. 2 K.L. Tekam is eye witness to the

accident who was co-traveller with deceased travelling

without fare in Jeep MH-27-H-1034 belonging to their

friend Prakash Kakade. It was driven by driver Rajesh

Kakade in high speed and gave dash to the back-side of

truck standing in the middle of the road in front of

Fatima Convent without tail lights on at night-time, thus

jeep driver who could not control the vehicle collided

with the truck.

7. Learned counsel for the appellant advanced

submissions at length in support of appeal. He did not

dispute that the offending truck (involved in the

accident) was validly insured covering the date of

accident. But assailed quantum of compensation awarded

by the Tribunal on the ground that reasons were not

discussed to justify the award which resulted into

excessive award. It is further submitted that

contributory negligence between the drivers of offending

motor vehicles ought to have been apportioned as 60% for

the jeep driver and 40% for the truck driver in view of

ruling in Gujarat State Road Transport Corporation v.

Rameshbhai Parsottambhai reported in 2003 (2) T.A.C. 147

(Guj). Reference is also made to ruling in National

Insurance Co. Ltd. v. Chand Ratan and ors reported in

2001 (2) T.A.C. 715 (MP) to submit that the MP High Court

had limited the liability of truck driver in such case to

one-fourth only. I have perused the rulings. I propose

to discuss the cases of contributory and composite

negligence later at appropriate stage in the judgment.

8. Learned Advocate for claimants supported

impugned judgment and award as just and reasonable in the

facts and circumstances of case.

9. First, I would deal with submissions as to

quantum of compensation. An accident can cause

irreparable loss to entire family especially when only

earning member of family is lost. The dependents in

family are required to come out of shock and look forward

to live without head or manager of the family who was

sole earning member. Monetary compensation in just and

reasonable sum is consolation for them enabling them to

try to forget the unfortunate incident and look forward

and live. The Motor Vehicles Act has definite social

purpose to reinstate the dependents to the position to

which they would have been had the accident not occurred.

But amount of compensation to be awarded shall not be a

bonanza of comforts, facilities, amenities out of

misfortune but need to be just, proper and reasonable.

The requirements as to burden of proof in common law of

evidence to prove negligence on the part of driver in an

application under Section 166 may really become difficult

and time consuming process. The Legislature in its

wisdom as part of social justice provided second schedule

as a system under Section 163A of the Act whereby such

burden can be avoided in the interest of alternate speedy

justice delivery. The Tribunal can use it as a guide to

select appropriate multiplier to strike a just balance

between claim and compensation to be awarded after

considering all relevant factors. Age of victim and ages

of dependents are relevant factors to determine a proper

multiplier. The 2nd Schedule provided has been discussed

in ruling in the case of Deepal Girishbhai Soni v. United

India Insurance Company Limited reported in (2004) 5 SCC

385. 2nd Schedule is to be used not only for to refer

age of victim but also other factors relevant therefor.

The Tribunal has to interpret beneficial provisions for

the third parties liberally with a view to give effect

thereto and attempt answering complicated questions of

facts and law arising in each case of accident instead of

merely relying upon mathematical equations. As observed

in UP State Road Transport Corporation v. Trilok Chandra

(1996) 4 SCC 362, there are certain shortcomings in the

Second Schedule hence selection of multiplier cannot

depend only on the age of victim. The Tribunal is

required to off-set the multiplier fixed in the 2nd

Schedule and strike a just balance along with life

expectancy of dependent/claimants. Ages of dependent-

claimants apart from age of victim considered in 2nd

schedule are, therefore, required to be borne in mind as

relevant factors to strike a just and appropriate balance

between the claim and compensation to be awarded. The

purpose of awarding compensation to dependents is to

provide them just and fair compensation as they were

suddenly deprived of the source of their maintenance.

As far as possible, they shall be provided with the means

which were available to them before the accident

occurred. Therefore, principle of fixation of multiplier

would depend on the facts and circumstances of each case.

For fixing just and reasonable compensation all relevant

factors including including fixing appropriate multiplier

have to be borne in mind.

10. According to claimant witness Smt Shobha, her

deceased husband was earning as agricultural labourer @

Rs. 100/- per day and also working on his own field.

The prospects of future advancement in life can also form

relevant consideration to determine his gross income as

held in Susamma Thoms v. Kerala State RTC reported in

1994 ACJ 1 (SC). Future prospects of increase cannot be

overlooked to fix an average per monthly earning. Keeping

in view increase in inflation in future, his gross

monthly income would have shot up in due course of time

to at least double the amount than what he was earning at

the time of his death. Amount of Rs. 3000/- on an

average would be taken as gross monthly earning of the

deceased. Deducting 1/3rd expenses as his personal

expenditure, amount of Rs. 2000/- would have been

available for dependents/claimants. Thus, annual income

of Rs. 24000 x 13 = Rs. 3,12,000/- (applying 13 as

appropriate multiplier taking guidance from 2nd

Schedule). To this figure of Rs. 3,12,000/- conventional

figure of Rs. 15000/- by ig way of loss of estate and

consortium, funeral expenses etc. will lead to total

figure of Rs. 3,27,000/-. This is the amount which

claimants would be entitled to get by way of just

compensation from the appellant/insurer and

owner/drivers of offending motor vehicle responsible for

the accident along with reasonable interest at the rate

of Rs. 7.50% per annum. For these reasons, the amount

awarded on higher side by the Tribunal needs modification

accordingly.

11. In the rulings cited by learned counsel for

appellant and referred to above, in Chand Ratan's case

in paragraph 6A law as to composite negligence has been

referred to. In such cases claimants representing victim

(third party) who died in the accident need not establish

the responsibility as to contributory negligence of

drivers of two or more motor vehicles involved in the

accident as the death resulted due to composite

negligence of two or more tort feasors who are severally

and jointly liable to pay compensation to the claimants.

Negligence is failure to take care, precaution which a

prudent and reasonable man would have taken in particular

circumstances. Contributory negligence is assessed in the

ratio of liability of drivers of two motor vehicles

involved in the accident. Both drivers had last

opportunity to avoid, but both were careless or negligent

to do something which any reasonable and prudent person

would have done to avoid accident. Jeep driver driving

at high speed contributed to the accident as greater care

was required from him to see that no accident shall

occur before the jeep dashed at a stationary truck from

rear side. The truck parked on road negligently had tail

lights off at the time of accident indicating composite

negligence and carelessness on the part of truck driver

as well who could have by adopting precaution keep on the

tail lights to alert any driver driving on high way at

high speed. Adequate precaution and care was certainly

required also from the jeep driver to avoid accident as

also by the stationary truck driver who could have taken

adequate precaution to avert accident. The question,

therefore, is, can the responsibility be apportioned at

50:50 equally like in a case of contributory negligence

on the part of jeep and truck driver as the Tribunal

fixed it. Driver of the jeep driving at high speed

knocking the truck from back-side and negligence of truck

driver keeping it stationary parked on the high-way with

tail lights off are both responsible for cause of the

motor accident. Considering their composite negligence

in the facts of the present case cannot appropriately be

apportioned equally to the extent at 50 : 50 between

jeep driver and truck driver for causing the accident.

True it is that it was the duty of both drivers to take

adequate precautions and to avoid accident. Both the

jeep driver and truck driver were expected to take

precautions and care in the facts and circumstances of

the case. On the principle of doctrine of last

opportunity, every person who had last opportunity to

avoid accident by exercise of proper care, will also be

held responsible for accident in an accident involving

two or more vehicles where a third-party (other than

drivers and/or owners of the vehicles involved) claim

damages. It is said that the compensation is payable in

respect of the composite negligence of the drivers of

those vehicles. In case of contributory negligence, when

a person suffers injury partly due to negligence on the

part of another person and partly as a result of his own

negligence, the negligence on the part of injured or

victim which contributed to the accident is referred to

as his "contributory negligence". In the present case,

it appears a clear case of composite negligence in view

of ruling in T.O. Anthony v. Karvarnan and ors reported

in 2008 (3) SCC 148.

12. Thus, when a person/victim suffered without any

negligence on his part but as a result of combined effect

of negligence of two other persons, it is not the case of

"contributory", but what has been said by famous jurist

Pollock as injury or death by "composite" negligence. In

the present case, there was no contributory negligence on

the part of victim, hence, the question of apportionment

of his negligence does not arise. Both the drivers were

responsible for the accident and as a result of their

composite negligence victim had suffered death and

compensation is payable to the third-party in respect of

composite negligence. The question of contributory

negligence would arise if legal heirs of driver who died

(involved in accident) are claimants or owner is

claiming damages for the loss to vehicle. Then only

question of ratio or the extent of contributory

negligence of the driver concerned can be determined.

13. In case of composite negligence, each wrong

doer is jointly and severally liable to the injured for

payment of entire compensation. Legal heirs or legal

representatives of victim in such case need not establish

or prove the extent of responsibility of each driver

(wrong doer) separately nor it is necessary for the

Tribunal to determine the extent of responsibility of

each driver (wrong doer) separately. Claimants are free

to recover the compensation awarded from any of the wrong

doer (tort feasor) which they like. The tort feasor who

makes the payment will be free to recover/realise the

amount paid from other tort feasors.

14. Learned counsel for appellant referred to

ruling in National Insurance v. Chand Ratan and ors

(supra) to determine liability of tort feasors inter-se.

He argued that liability of jeep driver and truck driver

who parked truck stationary without tail lights on may be

determined in the ratio of 75 : 25. In my opinion,

driver of the truck keeping it stationary or parked on a

high-way at night time without indicating by tail-lights

or back lights about the fact that the truck is parked

stationary at one place, is also responsible for the

accident with that of the jeep driver who drove

negligently at a high speed. In case of composite

negligence amount of compensation cannot be apportioned

because claimants cannot be directed to proceed to

recover the apportioned amount from each vehicle

owner/insurer involved in the accident. However, from

the material on record in this case, amongst drivers

involved in the accident (tort feasers), it appears

reasonable to hold jeep driver negligent to the extent of

60% and truck driver to the extent of 40% in the facts

and circumstances of this case.

15. For reasons stated above, the appeal is partly

allowed. The impugned judgment and award is modified with

direction that Insurance Companies for Jeep as well as

Truck (offending vehicles); owners and drivers thereof

shall pay compensation in the sum of Rs. 3,27,000/- (Rs.

Three lakhs twenty-seven thousand only) jointly and

severally to the claimants with interest at the rate of

7.50 per cent per annum from the date of claim petition

till realisation (after adjusting the deposits or payment

already made to claimants). The claimants are free to

realise the amount from any of the tort-feasors/owner/

insurer of offending motor vehicles as they may like and

the tort-feasor/insurer who made the payment of

compensation shall be free to recover the apportioned

amount from other set of tort-feasors/owner/insurer.

Costs of the proceedings shall be paid to claimants

proportionate to their share. Payment already made be

adjusted accordingly and excess amount, if any, be

refunded to party who deposited it. Appeal allowed

accordingly.

A.P. BHANGALE, J

hsj