The New India Assurance Co. Ltd., ... vs Gayatridevi Vinayak Shukla And 3 ...
2017 Latest Caselaw 8996 Bom

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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                          NAGPUR BENCH, NAGPUR


                                                     FIRST APPEAL No.769 OF 2006

                       The New India Assurance Company Ltd.,
                       through it's Divisional Manager,
                       DO-II, Udhyam Building, West High Court Road,
                       Dharampeth, Nagpur.                         :      APPELLANT

                                          ...VERSUS...

                       1.    Smt. Gayatridevi Vinayak Shukla,
                              Aged 54 years,
                              Occupation : Household.

                       2.    Dhiraj s/o. Vinayak Shukla,
                              Aged 25 years,
                              Occupation : Not known.

                       3.    Sudhir s/o. Vinayak Shukla,
                              Aged about 23 years,
                              Occupation : Not known.

                              All R/o. C/o. Shyam s/o. Jogeshwari Shukla,
                              Behind Yeshwant Statdium, Near Udasi
                              Ashram, Dhantoli, Nagpur.

                       4.    Modan Singh s/o. Bhansingh,
Dismissed against             aged major, 
respondent No.4.
                              Occupation : Owner of truck
                              bearing Regn. No.MP-23/DA-8733,
                              R/o. Tatibandh, Raipur.
                              (Madhya Pradesh).                                                      :      RESPONDENTS


                       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                       Shri A.J. Pophaly, Advocate for the Appellant.
                       Shri Asghar Hussain,  Advocate for the Respondent Nos.1 to 3.
                       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                                     CORAM  :   S.B. SHUKRE, J.

rd DATE : 23 NOVEMBER, 2017.

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        ORAL JUDGMENT   :

1. Common judgment and order dated 2nd August, 2006,

rendered in three claim petitions is questioned in the present appeal to

the extent of the findings recorded by the Claims Tribunal, Nagpur, in

the Claim Petition being Claim Petition No.533/2002 filed by the

respondent Nos.1 to 3.

2. On 17th March, 2002, deceased Niraj and two others were

returning to Nagpur by car bearing No.MH-31-AG-2244, after having

gone to the farm of one Shri Dhawad. When the car reached at a spot on

the road situated near Wadi village District Nagpur, one truck bearing

registration No.MP-23-DA- 8733 approaching from the opposite direction

collided head on against the car. All the three persons traveling in the

car including deceased Niraj, sustained fatal injuries and died on the

spot. Wadi Police Station registered offences punishable under Sections

279 and 304-A of the Indian Penal Code against the driver of the

offending truck. Three separate claim petitions were filed by the legal

representatives of the deceased persons. Claim Petition No.533/2002,

from which the present appeal arises, was filed by the respondent Nos.1

to 3 for seeking compensation under Section 166 of the Motor Vehicles

Act, 1988 (in short, "MV Act") for the unfortunate loss of deceased Niraj,

son of respondent No.1 and brother of respondent Nos.2 and 3. At the

time of accident, deceased Niraj was 23 years of age. He was earning

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about Rs.3,000/- to Rs.3,500/- per month by working as Cook as well as

Watchman. The claim petition was filed against the appellant insurer of

the offending truck and the owner of the offending truck who is

respondent No.3 in the present appeal. The respondent No.4 was

proceeded against exparte while appellant resisted the claim petition. It

was contended by the appellant that the accident occurred only due to

negligence of the car driver and alternately it was submitted that there

was contributory negligence in causing of the accident on the part of

drivers of both the vehicles. It was also submitted that the claim petition

not having been filed against the insurer and the owner of the car

bearing registration No.MH-31-AG-2244 was bad for non-joining of

necessary parties. On merits of the case, the defences so taken by the

insurance company were not accepted by the Tribunal and allowing the

claim petition partly, the Tribunal granted compensation of

Rs.1,97,000/- to the respondent Nos.1 to 3 and it was made payable

jointly and severally by the appellant and respondent No.4, the insurer

and owner of the offending truck respectively. Not being satisfied with

the same, the appellant is before this Court in the present appeal.

3. I have heard learned counsel for the appellant and Shri

Asghar Hussain, learned counsel for respondent Nos.1 to 3. The petition

is already dismissed against the respondent No.4, owner of the offending

truck. I have gone through the record of the case including the

impugned judgment and order.

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4. Now, the points which arise for my determination are :

i) Whether the petition was bad for non-joinder of parties ?

ii) Whether the compensation granted by the Tribunal is just and proper ?

5. Learned counsel for the appellant submits that the owner and

insurer of another vehicle, the car involved in the accident were

necessary parties and, therefore, the petition was liable to be dismissed

and in any case, the insurer and the owner i.e. appellant and respondent

No.4 could not have been fastened with entire liability regarding

payment of compensation determined by the Tribunal and that it ought

to have been reduced to 50% in proportion to the percentage of

composite negligence already determined by the Tribunal. On the other

hand, it has been submitted on behalf of the respondent Nos.1 to 3 that

this being a case of composite negligence, it was the choice of the

claimants to join all the parties compositely negligent or only some of the

parties taking part in the composite negligence and that is the settled

law. It is further submitted on behalf of the respondent Nos.1 to 3 that

the compensation determined by the Tribunal is on the lower side and it

is required to be enhanced so as to make it a just and reasonable

compensation and the claim in this regard can be even orally made by

the claimants without filing any appeal or cross-objection.

6. So far as the law relating to necessary parties guilty of

composite negligence is concerned, I must say that it is now well settled.

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It is the choice of the claimants to join all or any of them in petitions

claiming compensation under Section 166 of the MV Act. The Tribunal

has relied upon the law laid down in the case of Sitaram Prabhu Tele

and another vs. Rajabai Vilas Patil and others, reported in 2001(2)

TAC 475 Bom. and also in the case of Satpalsingh Dharamsingh

Chowdhary and another vs. Ashok g. Raut and others, reported in

2005(2) TAC 199 (Bom.), which follows the law laid down by the

Hon'ble Apex Court in the case of Union of India vs. United India

Insurance Co. Ltd. and others, reported in 1998 ACJ 342(SC) and

rightly so. I, therefore, find no merit in the argument of learned counsel

for the appellant and finds substance in the argument of learned counsel

for the respondent Nos.1 to 3 in this regard. The first point is answered

as in the negative.

7. Now, it is well settled that even if the appeal or

cross-objection has not been filed by the claimants still, the claimants can

make a claim for enhanced compensation while defending their position

in the appeal filed against them by the insurance company or the owner

of the offending vehicle. Therefore, the oral claim submitted by the

learned counsel for the respondent Nos.1 to 3 for enhancement of the

compensation would have to be considered in the present appeal on its

own merits and now it shall be considered so in the following

paragraphs.

8. The evidence of PW 2 Rajesh, the claimant's witness is quite

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clear and there are hardly any circumstances appearing in his entire

evidence to entertain any doubt about the assertions made by him.

Accepting his evidence, I find that deceased Niraj used to work with

PW 2, Rajesh, a Cook by profession and render his assistance in

performing his job as a Cook as and when required. His evidence further

shows that PW 2, Rajesh, used to pay Rs.300/- to deceased Niraj for one

day's work and on an average, deceased Niraj used to work with him for

at least about 6 to 7 days in a month. In fact, at the time when the

accident occurred, deceased Niraj was returning home after performing

his job as assistant to the cook, at village Gondkhairi. Based on this

evidence, the Tribunal determined the average monthly income of the

deceased Niraj as Rs.2,000/-. I do not think that any error has been

committed in making such a determination by the Tribunal. The age of

the deceased, as seen from the evidence available on record, was 23

years at the time of death and therefore, as per Sarla Verma (Smt.) and

others vs. Delhi Transport Corporation and another, reported in

(2009) 6 SCC 121 appropriate multiplier would be of '18' and as he was

a bachelor, as per this case only, one half deduction on account of

personal expenses from the income of the deceased would have to be

made. However, the Tribunal has committed an error on both these

counts. It has selected multiplier of '17' instead of '18' and deducted

1/3rd amount from the monthly income for personal expenses, which

should have been not less than one half of the income earned. The

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Tribunal has given Rs.2,500/- each on account of loss of estate and

funeral expenses as non-pecuniary damages which now as per the law

settled by the Hon'ble Apex Court in the case of National Insurance

Company Limited vs. Pranay Sethi and others , delivered in Special

Leave Petition (Civil) No.25590/2014 , decided on 31

st October, 2017.

should be of Rs.15,000/- each. Thus, calculated, the total compensation

payable to the respondent Nos.1 to 3 would be as under :

                 Annual Income                                    -   (Rs.2000x12 = Rs.24,000/-)

                 ½ deduction 
                 for personal expenses                            -   (24,000-12,000=12,000)

                 Appropriate multiplier as per 
                 Sarla Verma's case '18'
                 for 23 years of age.           :     12,000 x 18


                A) Total loss of dependency                                          :                  Rs.96,000/-
                B) Non-pecuniary damages                                             :                  Rs.30,000/-
                     i)  Loss of Estate         (Rs.15,000/-)
                     ii) Funeral Expenses   (Rs.15,000/-)
                                                                                                        ------------------
                           Total (A) + (B)                                           =                  Rs.1,26,000/-
                                                                                                        =======

9. So, I find that the respondent Nos.1 to 3 are entitled to

receive total compensation of Rs.1,26,000/-.

10. However, this does not mean that the respondent Nos.1 to 3

or the claimants are not entitled to receive any amount of compensation

from the owner and insurer of the other vehicle which is a car involved in

the present accident, though that would be as per their choice and in

accordance with law. This is because of the fact that in two other

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connected claim petitions, Tribunal has already recorded a finding that

even the owner and insurer of the car have their liability to pay

compensation in the present case to the claimants in proportion to the

percentage of negligence, which was of 50% for the car and 50% for the

truck.

11. The impugned judgment and order discloses that this was a

case of composite negligence and the Tribunal has already fixed the

percentage of composite negligence on the part of the driver and owner

of each of the two vehicles on 50 x 50 basis and rightly so. Relying on

this finding, learned counsel for the appellant submits that the liability of

the appellant to pay compensation be reduced to 50% of the amount

awarded as compensation under this order. I am not inclined to accept

the argument relating to reduction of the liability in proportion to the

percentage of composite negligence rightly fixed by the Tribunal for the

reason that this case being of composite negligence, the claimants, at

their choice, can seek compensation from all or any of the persons held

liable to pay compensation on account of composite negligence. If the

appellant desires to recover something which it feels to be in excess of its

percentage of liability, it would have to do so by resorting to appropriate

remedy, which may be available in law and liberty in that regard can be

granted. So, the compensation so awarded hereunder would be jointly

and severally payable by the appellant and the respondent No.4 together

with interest at the same rate and for the same period as granted by the

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Tribunal. The second point is answered accordingly.

12. In the circumstances, the appeal filed by the appellant

deserves to be dismissed and the oral challenge of the respondent

Nos.1 to 3 deserves to be partly allowed.

13. The appeal stands dismissed.

14. The oral challenge raised by the claimants on the question of

inadequacy of compensation is partly allowed and accordingly, it is

directed that the claimants i.e. respondent Nos.1 to 3 are entitled to

receive compensation of Rs.1,26,000/-, inclusive of no fault liability

amount together with interest at the rate of 7.5% p.a. on the enhanced

compensation from the date of petition till realization.

15. It is directed that this compensation, in the present case shall

be payable in its entirety, jointly and severally, by the owner and insurer

of the offending truck i.e. respondent No.4 and the appellant

respectively, notwithstanding the fact that the claimants had a right, in

principle, to receive the compensation also from the owner and insurer of

the other vehicle i.e. car involved in the accident.

16. The appellant shall be at liberty to recover 50% of the

amount of compensation from the owner and insurer of the car bearing

registration No.MH-31-AG-2244 involved in the accident by instituting

appropriate proceeding, in view of crystallization of extent of its liability

made under this order.

17. Additional Court fees, if not paid, be paid in eight weeks.

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18. The impugned judgment and order stand modified in the

above terms.

19. Parties to bear their own costs.

20. Appeal is disposed of in the above terms.

JUDGE okMksns