Balwanti Devi Widow Of Late Shri ... vs Surjit Singh S/O. Shri Gugan Singh ...
2004 Latest Caselaw 179 Del

JUDGMENT

Madan B. Lokur, J.

1. On 27th November, 1979 an accident took place near the R.K. Puram crossing between a three wheeler scooter and a bus of the Delhi Transport Corporation (for short the DTC). Rambir Singh, son of Appellants No.1 and 2 was a passenger in the scooter and died as a result of the accident. At that time, the deceased was about 25 years of age. He had completed his graduation and was a final year student of a BAMS degree course in Ahinsa Ayurvedic College, Shankar Road, New Delhi.

2. The Appellants (Appellant No.2 has since died) filed a claim petition before the learned Motor Accidents Claims Tribunal (for short the MACT) seeking compensation of Rs.2,00,000/- for the death of their son. Respondent No.1 is the driver of the bus while Respondent No.2 is the DTC and owner of the bus. Respondent No.3 is the driver of the scooter while Respondents No.4 and 5 are the owners of the scooter. Before the learned MACT, the Respondents (except DTC) were proceeded against ex parte. Respondent No.3 (the driver of the scooter), however, entered the witness box to support the case of the Appellants before the learned MACT.

3. From the Award of the learned MACT, the facts appear to be that a DTC bus was being driven on the main road at a high speed by Respondent No.1. A three-wheeler scooter driven by Respondent No.3 took a right turn towards the direction of the bus through a gap in the central verge. According to Respondent No.3, he saw the bus at a distance of about 50-60 yards but he still took a turn. The bus collided with the rear portion of the scooter and in the resultant accident, the Appellants son died.

4. The learned MACT dealt with the following issues:

1. Whether Rambir Singh, deceased suffered fatal injuries in accident on 27.11.79 due to rash and negligent act of driving of bus No.DHP-2816 on the part of respondent No.1?

2. Whether petitioners are the L.Rs of the deceased?

3. Whether the accident was caused due to negligent/rash driving of scooter DHR-8790?

4. To what amount of compensation, if any, are the petitioners entitled and from which of the respondents?

5. Relief.

5. In so far as Issue No.2 is concerned, there was no dispute that the Appellants are the legal representatives of the deceased. In so far as Issues No.1 and 3 are concerned, the learned MACT concluded that the deceased received fatal injuries in the accident and that both the driver of the DTC bus as well as the driver of the scooter were negligent in causing the accident.

6. With regard to Issue No.4, that is, the compensation to be granted, the learned MACT analyzed the evidence and did not accept the averment that the deceased was doing some private practice whilst studying. According to the learned MACT, there was no evidence that the deceased had a shop or clinic for private practice. No cash books or account books were produced. Appellant No.1 (the mother of the deceased) had stated that her son had given her Rs.500/- on one occasion and Rs.600/- on another occasion but the learned MACT did not accept this because there was no documentary evidence (in the form of a money order slip) to show any payment by the deceased to his mother who was living in a village outside Delhi. The learned MACT also felt that if the money was sent through some person, that person could have been produced to give evidence. In the absence of any evidence to show the method of payment, the learned MACT held that no money was sent by the deceased to his parents.

7. The learned MACT then held that after completing his education, the deceased would have earned about Rs.600/- per month out of which he would require Rs.500/- for himself for his maintenance. As such, his saving would be about Rs.100/- per month which could have been given by him to his parents. The annual dependency was, therefore, calculated at Rs.1,200/-. It was found that the mother of the deceased was about 60 years of age and the father was about 70 years of age. On this basis, the learned MACT calculated the dependency, taking the multiplier of 15, at Rs.18,000/- (Rs.1200 x 15).

8. Since the learned MACT concluded that both the driver of the DTC bus as well as the driver of the scooter were negligent, a finding of "contributory negligence" was given and it was held that they were liable to equally share the burden for making the payment of compensation. Accordingly, Respondents No.1 and 2 were directed to pay Rs.9,000/- jointly and severally and Respondents No.3 to 5 were directed to pay Rs.9,000/- jointly and severally to the Appellants. It was held that the Appellants were entitled to interest at 10% per annum on the unpaid amount from the date of filing the claim petition till realization of the amount.

9. In appeal, learned counsel for the Appellants raised two contentions. It was firstly contended that the dependency of Rs.100/- per month arrived at by the learned MACT was far too low. It was then submitted that the case was not one of contributory negligence but one of composite negligence inasmuch as the accident was not at all attributable to the deceased who was only a passenger in the vehicle. The accident was entirely attributable to the negligence of both the drivers and, therefore, they and the respective owners of the vehicles were liable to make the entire payment jointly and severally.

10. The question of assessment of damages is always a very tricky one to answer. Any conclusion arrived at is always open to criticism as being too low or too high, depending upon the critic. This is because each such assessment can, and very often does, vary from person-to-person and it cannot be said that the assessment of one person is more accurate than the assessment of another, since both are based on probabilities and what the future may hold.

11. Recognizing this dilemma, the Privy Council observed in Grand Trunk Railway Co. of Canada vs. Jennings, (1888) 13 AC 800 at pages 803-804 of the Report as follows:

"In Beckett's case, as well as in the present, all the Courts below have justly held that the right conferred by statute to recover damages in respect of death occasioned by wrongful act, neglect, or default, is restricted to the actual pecuniary loss sustained by each individual entitled to sue. In some circumstances, that principle admits of easy application; but in others, the extent of loss depends upon data which cannot be ascertained with certainty, and must necessarily be matter of estimate, and, it may be, partly of conjecture."

12. Similarly, the Supreme Court observed in C.K. Subramania Iyer vs. T. Kunhikuttan Nair, , after reviewing the case law in England that "The mode of assessment of damages is not free from doubt. It is beset with certain difficulties. It depends on many imponderables." (paragraph 10 of the Report). Thereafter, in paragraph 13 of the Report, it was held:

"There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable."

13. In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd., , the Supreme Court said in paragraph 12 of the Report:

"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."

14. In a recent decision M.S. Grewal vs. Deep Chand Sood, , the Supreme Court said in paragraph 11 of the Report:

"... in assessing damages, all relevant materials should and ought always to be placed before the court so as to enable the court to come to a conclusion in the matter of affectation of pecuniary benefit by reason of the unfortunate death. Though mathematical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefore. It is not a fanciful item of compensation but it is on legitimate expectation of loss of pecuniary benefits."

15. Keeping all these difficulties in mind, one has to try and search out the probabilities from the evidence on record and, as far as possible, reach an objective conclusion. Having gone through the evidence on record, it seems to me that the only reliable evidence in this case is the testimony of Appellant No.1. She had testified that the deceased had given her an amount of Rs.500/- on one occasion and Rs.600/- the next month. The learned MACT did not believe her because it was said that transmission of the amounts would have been by money order or through some person, but no evidence was produced in respect of either.

16. I'm afraid the learned MACT has been a little too technical in this regard. Assuming money had been sent by the deceased by money order on both occasions, it is quite possible that the money order slip may not have been retained because it was not such an important piece of paper that one was required to keep it carefully. It is also possible that the deceased may have personally gone to the village to hand over the money to his mother. On the other hand, it is also possible that Appellant No.1 may have been in Delhi when the deceased handed over the money to her. There is no evidence one way or the other in this regard. Under the circumstances, there is nothing that leads me to conclude that the testimony of Appellant No.1 should be discarded because what she says is either improbable or something out of the ordinary. Her testimony should have been accepted by the learned MACT at its face value, particularly in the absence of any cross examination in this regard, except a bald suggestion to the effect that she was deposing falsely.

17. Proceeding, therefore, on the basis that the deceased gave his mother an amount of Rs.1100/- in two months, I think it will be reasonable to assume that the deceased was capable of giving, on an average, Rs.550/- per month to his mother, after deducting his personal expenses. This amount represents his savings and not his income. Since at that time the deceased was only a student, one would expect his income to increase after his studies are over. In fact, even the learned MACT has acknowledged that the deceased would start earning after completing his studies. How much would be his income and correspondingly how much would be his savings, is not possible to say with certainty. But, since the learned MACT has adopted a multiplier of 15 (which has not been challenged by any of the Respondents), it would be reasonable to assume that the income of the deceased, as also his savings, would perhaps have more than doubled over this period. This assumption is being made on the basis of two factors; firstly, the age of the deceased (25 years) and secondly, that he had just begun his private practice, which would be expected to grow over a period of time. I have also kept in mind the general principle laid down by the Supreme Court in General Manager, KSRTC vs. Susamma Thomas . I am conscsious of the fact that in this case decided by the Supreme Court, the deceased had a steady job (unlike Rambir Singh). But, at the same time the deceased in Susamma Thomas was about 38-39 years old, while Rambir Singh was much younger.

18. Averaging out the gross monthly savings of the deceased from Rs.550/- to double that amount to Rs.1100/- per month, the annual savings of the deceased would have, therefore, been Rs.13,200/- (1100 x 12). Applying the unchallenged multiplier of 15, the dependency of the Appellants would work out to Rs.13,200 x 15 = Rs.1,98,000/- which is roughly equal to the amount claimed by the Appellants. It may be mentioned, en passant, that the multiplier adopted by the learned MACT is far too high (see for example Municipal Corporation of Greater Bombay vs. Laxman Iyer ) but since that is not under challenge, I am not only leaving it undisturbed, but proceeding on the basis that it is correct.

19. Accordingly, I am of the view that the learned MACT should have awarded compensation of Rs.1,98,000/- to the Appellants. It is ordered accordingly.

20. Of course, it is impossible to get an identical fact situation in two or more such cases. However, three instances, which I think are comparable to the present case, need to be mentioned. This comparison is being made only for the purpose of determining whether the compensation now awarded is too high or too low or is more or less equal to what has been awarded in other "similar" cases.

21. In Shanti Bai vs. Charan Singh, , a young boy of about 18 years was run over by a truck. The MACT awarded a sum of Rs.40,000/- against which the High Court dismissed the first appeal. The Supreme Court was of the view that since the victim was about 18 years and belonged to a labour class and even his younger brother was doing labour and getting Rs.10/- per day, had the deceased survived he would have earned a substantial amount per month. The Supreme Court felt that the compensation of Rs.40,000/- was too meager and said:

"Even taking a reasonable view of the amount which the deceased would have earned, had he survived, considering the future economic prospects of the deceased we deem it fit to increase the award to a lumpsum of Rs.1,50,000."

22. In a decision rendered by a Division Bench of this Court in Harbans Kaur vs. Jai Bhagwan, 2 (2001) ACC 490 (DB), a 20 year old student of M.A., who had been offered a job as a Research Officer for Rs.600/- a month to start with, died in an accident. The Division Bench said that there was a likelihood of his suitably being employed on his getting his masters degree on an average salary of Rs.1,000/- per month. After providing for his future prospects and making appropriate deduction for his personal expenses, the Division Bench found the annual dependency to be Rs.12,000/- and considering the age of his parents, a multiplier of 18 was applied to award compensation of Rs.2.16 lakhs.

23. In Delhi Transport Corporation vs. Sudershan Yadav, 1995 ACJ 393, a student aged 24 years died in an accident. He had passed his B.E. (Mech.) and was a 2nd year MBA student. The deceased was a brilliant student and the MACT assessed his earning capacity at Rs.2,000/- per month and a loss of Rs.1,000/- per month to the claimants. Accordingly, they were awarded compensation of Rs.1,92,000/-.

24. A learned Single Judge of this Court found that the monthly loss assessed at Rs.1,000/- per month was on the lower side and relying upon Susamma Thomas, assessed his monthly contribution to the claimants at Rs.2,000/- per month. Accordingly, the compensation was assessed at Rs.3,84,000/- (taking the multiplier at 16).

25. Rambir Singh (the deceased in the present case) neither belonged to the labour, nor was he a brilliant student. His case would, therefore, be somewhat similar to that of Harbans Kaur. Consequently, the award of compensation of Rs.1,98,000/- seems to be quite appropriate, on the facts of the case.

26. The second submission of learned counsel for the Appellants must also be accepted because the learned MACT has clearly erred in its conclusion that the case was one of contributory negligence. What is meant by contributory negligence has been explained by the Supreme Court in Municipal Corporation of Greater Bombay. It was held in paragraph 6 of the Report:

"Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defense to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning."

27. In the present case, it cannot be said that the deceased had contributed to the accident in any manner whatsoever. He was merely a passenger in the scooter and could have had no control whatsoever over the manner in which the driver manipulated the vehicle. The question of contributory negligence, therefore, does not at all arise and I'm afraid the learned MACT has gone completely wrong in this regard.

28. Learned counsel for the Appellant submitted that this is actually a case of composite negligence. The Supreme Court in Municipal Corporation of Greater Bombay explained what is meant by composite negligence. It was said:

"Where a person is injured without any negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence."

29. What is composite negligence and its effect on the liability of the tortfeasors has been discussed in Charlesworth & Percy on Negligence (10th edition). It has been said on page 118 as follows:

"Three situations can arise where two or more wrongdoers have committed torts which have caused damage to a claimant and these are: (1) where the wrongdoers are joint tortfeasors; (2) where they are several independent tortfeasors, causing the same damage to him; and (3) where they are several independent tortfeasors, each causing different damage to him. In this latter instance, each wrongdoer is liable only for that part of the damage caused by him, whilst if one of a number of joint tortfeasors or one of several tortfeasors causing the same damage is sued alone then, subject to any right he may have to contribution from the other tortfeasors, he is liable for the whole of the damage, even though he may have been responsible merely for just a small part of it."

30. Explaining the concept of several concurrent tortfeasors, it has been stated in Street on torts (10th Edition), on page 595 that:

"Several, or separate, or independent, tortfeasors are of two kinds; either those whose tortious acts combine to produce the same damage, or those whose acts cause different damage, to the same plaintiff."

31. As an illustration, reference has been made to Drinkwater vs. Kimber [1952] 2 QB 281. In that case, the plaintiffs were traveling in a van of which the husband was the driver and the wife a passenger. The van collided with a car driven by the defendant. In proceedings for damages, the defendant made a counter claim against the husband alleging that the husband was partly at fault for the collision. Stating the legal position on page 292 of the Report, it was said:-

"The defendant and the male plaintiff would not appear to have been joint tortfeasors. (See The Koursk, [1924] P.140) They were separate tortfeasors whose concurrent acts caused injury to the female plaintiff. By operation of law, once she proved negligence against the defendant, then she could recover from him the full amount of resultant damage suffered. It was no defense to the defendant, as against the female plaintiff, to say that the male plaintiff was also negligent."

32. In Halsbury's Laws of England, Volume 34, 4th Edition, it is stated in paragraph 77 as follows:

"Where a plaintiff sues two or more defendants who are liable on account of their negligent conduct in respect of the same damage, he will be awarded his entire damages against each defendant."

33. There are, therefore, two important features of composite negligence or concurrent tortfeasors. Firstly, there is only one unit of damage and it is not possible to divide this unit between various tortfeasors. Secondly, each tortfeasor is answerable in full for the whole damage caused to the plaintiff. Consequently, satisfaction by any concurrent tortfeasor discharges the liability of others.

34. The position is the same in respect of joint tortfeasors as has been held in London Association for Protection of Trade vs. Greenlands Ltd., [1916] 2 AC 15. In an action for libel, the position in law with regard to liability of a joint tortfeasor was stated by Lord Atkinson on page 31 and 32 of the Report in the following words:-

"The findings of the jury must, I think, mean that the publication of the letter ...... was the joint act of the three defendants, ...... If so, each of the three defendants was a joint tortfeasor, and being that they were jointly and severally responsible for the wrong done, and for the entire damage sustained: ......

The verdict, accordingly, against each and all of them should have been a verdict for the entire amount of the damage sustained. Each of the joint wrong-doers must be presumed to have known the wrongful nature of their joint act. There cannot be any contribution between them: Adamson v. Jarvis, (1827) 4 Bing. 66 ; Palmer v. Wick and Pulteneytown Steam Shipping Co. [1894] A.C. 318, 324. The release of one would operate as the release of all. The payment by one of the damages would discharge them all. Nay, even the recovery of judgment against one would be a bar to any action against the others for the same cause, although the judgment remained unsatisfied, - King v. Hoare, (1844) 13 M.&W.494 and Brinsmead v. Harrison (1872) L.R. 7 C.P. 547 - because the cause of action transit in rem judictam"

35. This Court, speaking through a Division Bench, has accepted and explained the distinction between contributory negligence and composite negligence. It has also recognized and explained the difference in liability in both cases of negligence.

36. In Om Wati vs. Mohd. Din, 2002 ACJ 868, the Division Bench explained the principle of composite negligence in the following words in paragraph 9 of the Report:

"The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrongdoer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tortfeasors becomes both joint and several."

37. In Angoori Devi vs. Megh Raj, 1 (2001) ACC 724 (DB), the Division Bench explained the distinction between contributory negligence and composite negligence in the following words in paragraphs 11 and 12 of the Report:

"In law of torts "contributory negligence" and "composite negligence" are regarded as two different and distinct concepts. The first postulates an act or omission on the part of a claimant which is also found to contribute materially to damage or loss.

"As against this, "composite negligence is understood to represent a situation where loss or damage is caused to a person because of the combined negligence of two other persons and in which there is no negligence on his part. The claimant in this does not contribute in accident which results in death or injury and it is tort-feasors who become jointly and severally liable for the loss and damages. A claimant could sue them jointly and severally but where he sues them jointly, each tort-feasor becomes liable to pay for the loss and damages and in that case he may recover it from any one of them or from all."

38. While dealing with the question of apportionment, it was said in paragraph 13 of the Report as follows:

"It is in this context word "apportionment" has come to be attached and related to the case of contributory negligence. This has led to "appointment" (sic) being understood as a division of liability between claimant(s) and the tort-feasors and reduction of loss/damages proportionate to claimants responsibility for the accident and on this premise it is made out that there could be no "appointment" (sic) in case of a "composite" negligence wherein liability was joint and several."

39. Composite negligence, therefore, is completely different from contributory negligence in which apportionment of liability is possible, as explained by the Supreme Court in Municipal Corporation of Greater Bombay.

40. The present case is clearly one where both the drivers are concurrent tortfeasors or joint tortfeasors, as they may loosely be described. In any event, this is of no consequence for the purposes of fastening liability. Their liability remains joint and several.

41. Under the circumstances, the appeal is allowed. It is held that the Appellants are entitled to compensation of Rs.1,98,000/- as against Rs.18,000/- awarded by the learned MACT. On the additional amount of Rs.1,80,000/-, the Appellants will be entitled to simple interest @ 9% per annum from the date of filing the claim petition till the date of payment. Since it is a case of composite negligence, the Appellants will be entitled to recover the amount from the Respondents jointly and severally.