Prof. M.M. Jain (Deceased) And ... vs Faquir Chand And Ors.
1987 Latest Caselaw 507 Del

JUDGMENT

S.B. Wad, J.

1. During the pendency of this appeal on 30-6-1987, appellant No. 1 Prof. M.M. Jain has died. This application has been moved for bringing the L. Rs. of the deceased appellant on record. There is no objection in this regard from the other side. The application is allowed. The cause title stands amended accordingly.

F.A.O. 120/74.

2. This appeal for enhancement of compensation is filed by father and mother of deceased Kumari Nandini Jain who died in an accident on 9-9-1966. The deceased was traveling in a four seater auto-rickshaw bearing No. DLR 136 which collided with motor cycle No. DLW 3877. The motor cycle No. DLW-3877 was going from Darya Ganj towards Chandni Chowk, while the four seater was coming from the opposite direction. As a result of the accident Nandini Jain suffered injuries and succumbed to the injuries. The Tribunal held that the accident was caused due to the negligence of drivers of both the vehicles. The Tribunal awarded the compensation of Rs. 26,520/- against the respondents jointly and severally. The liability of Respondent No. 3, the Insurance Company with whom the four seater was insured was limited to Rs. 4,000/- only under the provisions of Section 95(2) (b) of the Motor Vehicles Act.

3. The Insurance Company, Respondent No. 5, with whom the motor cycle was insured has filed the cross-objections. In the cross objections it was submitted that the Tribunal erred in not apportioning the blame of the four seater and the motor cycle and failed to distribute the liability for compensation of the two vehicles. Northern India General Insurance Company have not filed any cross-appeal. The owner of the motor, cycle had filed a claim petition against the owner of the four seater but that claim petition was dismissed by the Tribunal. No appeal is preferred by the owner of the motor cycle against the said award.

4. The first question is regarding the liability to pay the compensation. The counsel for the claimants has submitted that the liability of the two Insurance Companies was joint and several and the claimant was free to recover the entire compensation from any one of them. The counsel for Respondent No. 5 has, on the other hand, submitted that the liability should be apportioned between the two vehicles involved in the accident. According to him the liability of the four seater was 60% while that of the motor cycle was 40%. He has further submitted that the compensation payable should be apportioned in that proportion. From the reading of the judgment I find that the Tribunal erred in not apportioning the liability and the payment of compensation. Where there are two or more joint tortfeasors the liability of the joint tortfeasors can be ascertained. The Tribunal should record the finding to that effect. If, however, the evidence is such that the liability cannot be apportioned then the general rule of joint and several liability of the tortfeasors should be applicable. The facts, as disclosed in the evidence of this case, are this. That the four seater scooter was on the right side of the road and almost in the middle and the same is true about the motor cyclist. However, at the time of the accident the four seater scooter went further on the right side by about 1-1/2 feet in an effort to overtake the three wheeler scooter running in front of it. It gave little indication for the motor cyclist and it collided against the four seater scooter. Of course, the motor cyclist could have still avoided the accident by little swerving to the left side. It was wrong on the part of both the vehicles not to keep to the left and to drive the vehicle almost in the middle of the road when the traffic was passing on both the sides. From these facts I hold that the blame of the four seater scooter is more than that of the motor cyclist The proportion being 60 per cent liability of the four seater and 40 per cent liability of the motor cycle. The compensation amount payable shall be divided in this manner.

5. The next question is whether the facts of this case deserve more compensation. It is in evidence that the deceased Nandini Jain had passed her M.A. in Social Work from Delhi and had done her MSW from the University of Hawai. Thereafter, for a short while she had worked in the U.S.A. At the time of death she was working in the Asian Reconstruction Programme at the salary of Rs. 600/- per month. There is a letter on record which shows that she had also an offer of a job in USA at 598 dollars per month. The Tribunal held that the deceased was contributing Rs 200/- per month towards the family and applied the multiplier of 13 while arriving at the compensation of Rs. 31,200/-. The Tribunal deducted 15% on account of the lump sum payment and uncertainties of life and finally made an award of Rs. 26,520/-.

6. Normally on account of the personal expenses, one third deduction is made of the income of the deceased. The Tribunal was wrong in taking the personal expenses at 2/3rd of the income. Therefore, I hold that the deceased was spending Rs. 200/- per month on her personal expenses and was contributing Rs. 400/- per month towards the family. Her father, that is, the claimant in his evidence has stated that the deceased had decided to devote to her career and not to get her married. She was 26 years old at the time of the accident. The father of the deceased died on 30- 6-1987, that is, after 21 years after the accident and the second claimant, namely, the mother is still alive. In these circumstances the multiplier of 13 taken by the Tribunal is unrealistic. I, therefore, would apply the multiplier of 20 in the present case. The claimant would thus be entitled to Rs. 96,000/- as the compensation. The claimant would also be entitled to simple interest at the rate of 6 per cent per annum from the date of application till the date of payment.

7. The liability of the four seater scooter and of respondents 1, 2 and 3 would be Rs. 57,600/- and that of Respondent No. 5, Rs. 38,400/-. The liability of Respondent No. 3 is limited to Rs. 4,000/- only under the law. Therefore, the balance of Rs. 53,600/- shall be payable by the owner of the four seater rickshaw and the driver, that is, Respondents 1 and 2. if any amount of compensation is already paid by Respondent No. 5 they would be entitled to the credit of the said amount and proportionate interest on the same.

8. For the reasons stated above, the appeal is allowed. The cross-objections stand dismissed. There will, however, be no order as to costs.