Bombay High Court
New India Assurance Company Ltd. ... vs Shafi Shaikh, S/O Ramjanbhai ... on 13 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 204 of 2005
Appellant : New India Assurance Company Limited, having
its Branch at Homi House, Sadar, Nagpur,
through its Regional Manager, Regional Office,
Jhansi Rani Square, Sitabuldi, Nagpur
versus
Respondents : 1) Shafi Shaikh son of Ramjanbhai Sheikh,
aged about 62 years, Business, resident of
Butibori Old, District Nagpur
2) Hashmati w/o Shafi Shaikh, aged about
58 years, Household, resident of Butibori Old,
District Nagpur
3) N. Lakshmi Narayana s/o Narsimbha
Appa .... Deleted
4) Rupesh Sitaram Chahakar .. Dead (Deleted),
through Legal Representative -
Smt Varsha Rupesh Pese
5) The National Insurance Company, Amravati
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Mr A. J. Pophaly, Advocate for appellant
Mr R. S. Charpe, Advocate for respondents no. 1 and 2
Respondents no. 3 and 4 deleted
Mr G. N. Khanzode, Advocate for respondent no. 5
Coram : A. P. Bhangale, J
Dated : 13th August 2015
Oral Judgment
1. Feeling aggrieved by the judgment and award dated 6.1.2005
passed by learned Member, Motor Accident Claims Tribunal, Nagpur in
Claim Petition No. 28 of 1997, appellant New India Assurance Company
has filed present appeal. By the impugned award, the Tribunal has
directed appellant and original respondent no. 1 (owner of the offending
vehicle) to pay jointly and severally a sum of Rs. 2,84,000/- together with
interest @ 8% per annum from the date of petition till realization to
respondents no. 1 and 2 (claimants).
2. Facts
relating to the incident wherein son of respondents no.
1 and 2 died, are not in dispute. Learned counsel for appellant contends
that offending vehicle viz. Commander Jeep bearing No. MH-27/A-7687
was insured with respondent no. 5 the National Insurance Company and
since driver on that Jeep was negligent, proportionate liability should
have been fastened on respondent no. 5. He further contends that
multiplier "17" has been wrongly chosen and it should have been applied
at "8" looking to the dependency, age of deceased who died bachelor and
age of his parents. According to him, learned tribunal should have
deducted 2/3rd income of the deceased towards notional personal
expenses so as to consider the loss of dependency of the deceased.
3. Mr Charpe, learned counsel appearing for respondents no. 1
and 2 (claimants) has opposed the appeal. He submits that the Tribunal
while determining the compensation has taken into consideration the
principles and guidelines laid down by the Apex Court in Sarla Verma &
ors v. Delhi Transport Corporation & anr reported in (2009) 6 SCC
121. He argued that the Tribunal has applied proper multiplier and the
Tribunal has rightly taken 2/3rd income of the deceased towards
dependency of his parents while determining the compensation. As
regards the contention on behalf of appellant that proportionate liability
should have been fastened on respondent no. 5 Insurance Company, Mr
Charpe submits that composite negligence refers to the negligence on the
part of two or more persons. Where a person is injured or died as a result
of negligence on the part of two or more wrongdoers, it is said that the
person was injured on account of composite negligence of those
wrongdoers. In such a case, each wrongdoer is jointly and severally liable
to the injured for payment of the entire damages and the injured
person/claimant has choice of proceeding against all or any of them. In
such a case, the claimant need not establish the extent of responsibility of
each wrongdoer separately nor is it necessary for the court to determine
the extent of liability of each wrongdoer separately. He pressed into
service ruling of the Supreme Court in Pawan Kumar & anr v. Harkishan
Dass & ors reported in (2014) 3 SCC 590.
4. I have considered the rulings cited by learned counsel and
principles set out therein. There is no force in the submission advanced
on behalf of respondents no. 1 and 2 as regards the fastening of liability.
In my opinion, if at all, appellant Insurance Company is not satisfied that
it is alone responsible to pay compensation to the exclusion of insurer of
the offending vehicle, it is at liberty to approach the Tribunal for
determination of responsibility of respondent no. 5 to contribute for the
amount paid as compensation to the claimants so as to share the burden
jointly and severally, in accordance with law. There is no reason to
interfere with the finding of the Tribunal as regards determination of
compensation amount.
5. In the result, appeal is dismissed with liberty as reserved in
paragraph 4 above. No order as to costs.
A. P. BHANGALE, J
joshi
