Delhi High Court
National Insurance Company Ltd. & ... vs Smt. Sudesh Chabra & Ors. on 17 October, 2011
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ 1. MAC.APP.NO . 321-22/2006
AND CM NO. 12506/2007 (CROSS
OBJECTIONS)
NATIONAL INSURANCE COMPANY LTD.
& ANR. ..... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
SMT. SUDESH CHABRA & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 2. MAC.APP.NO . 317-18/2006
NATIONAL INSURANCE COMPANY LTD.
& ANR. ..... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
MAHENDER KAUR & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
345-46/2006 Page 1 of 47
+ 3. MAC.APP.NO . 319-20/2006
NATIONAL INSURANCE COMPANY LTD. AND ANR.
..... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
AMANDEEP SINGH AND ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 4. MAC.APP.NO . 323-24/2006
NATIONAL INSURANCE COMPANY LTD. AND ANR.
..... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
SAMPATI DEVI AND ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 5. MAC.APP.NO . 326-27/2006
NATIONAL INSURANCE COMPANY LTD.
& ANR. ..... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
345-46/2006 Page 2 of 47
JASWANT KAUR AND ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 6. MAC.APP.NO . 328-29/2006
AND CM NO. 12516/2007 (CROSS
OBJECTIONS)
NATIONAL INSURANCE COMPANY LTD. & ANR. ... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
Versus
BALJEET KAUR & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 7. MAC.APP.NO . 333-34/2006
AND CM NO. 12499/2007 (CROSS
OBJECTIONS)
NATIONAL INSURANCE COMPANY LTD. & ANR. ... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
DALIP KAUR & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
345-46/2006 Page 3 of 47
+ 8. MAC.APP.NO . 335-36/2006
NATIONAL INSURANCE COMPANY LTD. & ANR. ... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
GURDEEP SINGH & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
+ 9. MAC.APP.NO . 337-38/2006
AND CM NO. 12496/2007 (CROSS
OBJECTIONS)
NATIONAL INSURANCE COMPANY LTD. & ANR. ... Appellants
Through: Ms. Shantha Devi Raman,
Advocate
versus
SUDESH CHHABRA & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
AND
+ 10. MAC.APP.NO . 345-46/2006
NATIONAL INSURANCE COMPANY LTD. & ANR. .. Appellants
Through: Ms. Shantha Devi Raman,
Advocate
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
345-46/2006 Page 4 of 47
versus
RAVINDER & ORS. ..... Respondents
Through: Mr.O.P. Mannie, Advocate.
% Date of Decision : October 17, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
: REVA KHETRAPAL, J.
1. By this common order, it is proposed to decide a batch of ten
appeals arising out of the judgment and award of the Motor Accident
Claims Tribunal dated 20th January, 2006. The Motor Accident
Claims Tribunal by its orders dated 18.05.2001 and 15.03.2003 had
clubbed the ten petitions out of which the present appeals arise and
Petition bearing No. 1238/1998 (New No. 648/2003), titled as "Smt.
Sudesh Chabra & Ors. Vs. Mani Ram & Ors.", was taken as the lead
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
case. Since all the ten petitions arise out of the same motor vehicular
accident, it is proposed to delineate the facts in the lead case, that is,
MAC. APP. No.337-38/2006 titled as "National Insurance Company
Ltd. and Anr. Versus Sudesh Chabra and Ors.".
2. Concisely, the facts are that on 29.03.1998 at about 2.00 a.m., a
private bus bearing No. DL 1P 0798, carrying passengers travelling
from Chhatarpur to Jahangir Puri, collided with a stationary TMB
trailor bearing registration No. HNC 422 near Golf Ground, R.R.
Centre on the Ring Road. The said trailor, which was allegedly
parked on the wrong side of the road, was carrying angle iron
protruding outside the body of the trailor. As a result of the accident,
some of the passengers received injuries and some others died. The
injured victims as well as the legal representatives of the deceased
persons filed claim petitions claiming compensation, alleging that the
accident had been caused on account of the carelessness, rashness and
negligence of the driver and owner of the TMB trailor, the
respondents No. 4 and 5. In some of the petitions, Ajay Yadav (the
respondent No.5) had been impleaded as the owner, while in others
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
Lata Yadav was also impleaded as respondent, being the joint owner
of the offending trailor along with the said Ajay Yadav.
3. The owner and the driver of the offending trailor filed a joint
written statement raising the preliminary objection that the accident
was the outcome of the negligence of the driver and owner of the bus
in which the passengers were travelling, i.e., the respondents No. 6
and 7. An objection was also raised by them regarding the non-
impleadment of the insurer of the bus.
4. The appellant, M/s National Insurance Company Limited,
which was impleaded as respondent No.3 in all the petitions, being
the insurer of the TMB trailor, in the separate written statement filed
by it, pleaded that it had no notice of the accident and that the vehicle
was being driven in violation of the conditions of the policy of the
insurance.
5. Respondents No.6 and 7, that is, the driver and the owner of the
bus, though they initially entered appearance on service of notice
upon them of the institution of the petition, subsequently stopped
appearing and no written statement was filed by them. The said
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
respondents were accordingly proceeded ex-parte by the learned
Tribunal by order dated 30th January, 2001.
6. Identical issues were framed in all the claim petitions with the
exception of issue No.1 which was suitably modified in view of the
fact that six of the claim petitions pertained to fatal injuries sustained
by the victims while the other four cases pertained to the injuries
sustained by the claimants themselves. In all, ten witnesses were
examined on behalf of the claimants and one witness was examined
on behalf of the respondents, namely, RW1-Mani Ram, the driver of
the offending trailor. Needless to state, all the petitions having been
consolidated, the entire evidence was recorded in the lead case.
7. The learned Claims Tribunal after conducting an enquiry,
arrived at the conclusion that the accident had occurred due to the
sole negligence of the driver of the trailor (the respondent No.4, Mani
Ram), as the trailor was carrying angle iron, which was protruding
outside the body of the trailor and was parked on the road in a
negligent manner. As regards the evidence of RW-1 Mani Ram-the
driver of the offending trailor, the learned Tribunal observed that his
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
testimony could not be accepted to be true, for, the site plan prepared
by the Investigating Officer did not support his version of the manner
in which the accident occurred and thus his deposition was nothing
but an attempt to save himself. Mani Ram was, therefore, held to be
the principal tort-feasor. The respondent No.5, being the owner of the
trailor was held by the learned Tribunal to be vicariously liable, and
in view of the fact that there was no evidence on record to indicate
that there was any breach of the conditions of the insurance policy,
the appellant-insurer of the trailor was held liable to indemnify the
insured in respect of his liability towards the victims. The learned
Tribunal thereafter proceeded to assess the compensation payable to
the claimants in each of the cases and to pass awards.
8. Aggrieved from the aforesaid findings of the learned Tribunal,
the appellant has preferred the present appeal, principally on the
ground that there was composite negligence on the part of both the
drivers, that is, the driver of the trailor and the driver of the bus in
causing the accident, and the learned Tribunal should therefore have
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
apportioned the liability to pay compensation on the basis of
negligence of both the drivers of the vehicles.
9. It is contended by Ms. Shantha Devi Raman, the learned
counsel for the appellant, that the learned Tribunal erroneously held
that the entire negligence was attributable to the driver and owner of
the stationary trailor and erred in directing the appellant/Insurance
Company to pay the entire compensation amount in its capacity as the
insurer of the trailor. Hence the judgment of the Tribunal deserved to
be set aside on the aspect of negligence of the driver and the owner of
the trailor.
10. Reliance was placed by Ms. Raman on the evidence of RW-1
Mani Ram, who appeared in the witness box to depose that at about
10.00 p.m. on 28.03.1998, when his trailor was near Brar Square,
ahead of Dhaula Kuan, the bearing of the rear wheel broke and he
accordingly parked his trailor by the extreme side of the road, put on
the parking light, placed red cloth on the iron rods and stones on the
rear side of the trailor, and also tree branches by the side of the
stones. He further stated that he was in the trailor when, at about
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
1.30 a.m., he heard a loud thud and on coming out of the trailor, saw
that the front portion of the bus had banged into the rear portion of the
stationary trailor. The accident, he stated, was caused on account of
the absolute negligence of the driver of the bus. In cross-
examination, he denied that he had not placed any indication to show
that his vehicle was stationary, though he was compelled to admit that
he was facing criminal trial for this accident and that the owner of the
trailor Ajay Yadav too was facing trial.
11. Ms. Raman, the learned counsel for the appellant, also invited
my attention to the site plan prepared by the Investigating Officer to
contend that the learned Tribunal had failed to notice the significant
fact that the offending trailor was parked on the left side of the road,
and was partly on the „kacha‟ road (mud) and partly on the metallic
portion of the road. She contended that the parking of the trailor as
depicted in the site plan showed that the stationary trailor had been
parked in a proper manner. She emphasized that the driver of the
trailor, Mani Ram, RW-1 had appeared in the witness box and had
categorically stated that the bearing of the rear wheel of the trailor
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
had broken and, hence, the trailor had to be stopped and parked on the
road. He had further deposed that he had tied a red cloth on the iron
rods on the rear portion, and had also placed some stones and tree
branches. He had also stated that there was sufficient street-light, and
had denied the suggestion that he had not placed any indication to
make the road-user aware of the stationary vehicle. On the contrary,
the driver of the bus, who had been duly served with notice of the
filing of the Claim Petitions and had appeared in person on
30.10.2000, as set out in the impugned order, had subsequently
stopped appearing, and thereafter did not appear in the witness box to
depose about the manner in which the accident occurred. Adverse
inference was, therefore, liable to be drawn against him.
12. Ms. Raman also pointed out that the driving licence of the
driver of the bus was not available in the criminal records and though
the owner of the bus had, on service of notice under Section 133 of
the Motor Vehicles Act, disclosed the name and address of the driver,
the police could not trace out the driving licence of the driver of the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
bus. The fact that he was absconding, she argued, was in itself
sufficient to show that he was to be blamed for the accident.
13. Finally, Ms. Raman contended that the Tribunal had ignored
the significant fact that petitioners themselves in their petition had
pleaded that the accident had occurred due to the negligence of the
drivers of both the vehicles, but, at the time of evidence, the
petitioners had controverted and negated their own stand taken in the
petition.
14. On perusal of the Claim Petition, however, I find that this is not
so and the last contention of Ms. Raman does not hold water. It is
clearly stated in the Claim Petition as under:-
"that the deceased was travelling in the Private
Bus bearing No. DL-1P-0798 coming from
Chattar Pur to Jahangirpuri alongwith other
passengers. The bus collided with the TMB
Trailor No. HNC-422 which was stationary at
the wrong side in the bus lane carrying black
iron angles which were too much over hanging
dangerously, carelessly, outside the Trailor
having no sign or indicator on the body of
Trailor or on back side, so as to the bus could
take the precautions. The wrongly parked
stationary vehicle-Trailor was not visible to the
driver and passengers of the bus and were not
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
familiar of its parking and all of sudden it
struck with the over hanging iron angles placed
in Trailor which was on the wrong side. The
passengers cried and shouted. In the process
number of persons died and seriously injured.
The Trailor owner and driver were bound to
take cognizance of the increase in the volume
of traffic and ought to have installed Barricade
or kept a watchman at such place for the benefit
of the public under a duty of care. It was
inherently carelessness, negligence and
for keeping Trailor on wrong track and that too
without any head lights, indicator or reasonable
and necessary care. They had special
responsibility for the purpose of preventing
danger to passengers on the road by reason of
wrong parking and over hanging iron angles.
The respondents must have taken reasonable
care to avoid acts which one can reasonably
foresee would be likely to injure the passengers
on road. It is obvious that the accident could
have been avoided had there been no vehicle on
wrong track (bus lane), especially with over
hanging roads for which respondents are solely
responsible, therefore, the accident is only
and 2, due to gross negligence and
carelessness of the driver of the Trailor the
accident occurred resulting the instant death
of deceased alongwith other passengers
instanteously due to various grevious
injuries."
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
15. As noted by the learned Tribunal, the aforesaid averments
made in the Claim Petition are corroborated by the testimonies of
PW-2, PW-3 and PW-6 to PW-10, who have deposed on similar lines.
The relevant portion of the judgment of the learned Tribunal dealing
with the testimonies of the aforesaid witnesses is reproduced as
under:-
"8. In support of this issue petitioners have
examined PW-2 Mahinder Kaur who was a
passenger in the bus. She has deposed that the
truck bearing No: HNC 0422 (TMB Trailor)
was parked on the bus lane loaded with iron
angles which were coming out of the truck.
There was no light or any indication that the
iron angles were loaded in the trailor. On
account of the collision the iron angles entered
the bus and caused injuries to many passengers.
On cross-examination she deposed that the
truck was not visible and it was dark. PW-3
Jaswant Kaur has also deposed on the same
lines. PW-6 Smt. Sudesh Chabra has also
reiterated the facts as deposed by PWs-2 and 3.
On cross-examination she has deposed that the
speed of the bus was normal. She was not in a
position to see what lay ahead on the road. She
denied that the bus driver was rash and
negligent. PW-7 Baljeet Kaur has also deposed
in the same terms as PWs-2 and 3. She has not
been cross-examined as regards the manner of
the accident, though she has denied the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
suggestion that there was sufficient light. PW-
8 Dalip Kaur, PW-9 Ravinder and PW-10
Gurdeep Singh have also deposed about the
negligence of the truck driver."
16. On the aspect of composite negligence, reliance was placed by
Ms. Raman on the judgments of this Court rendered in Angoori Devi
& Others Vs. Megh Raj & Others I (2001) ACC 724 (DB); Om Wati
(since deceased) through L.Rs. Vs. Mohd. Din and Others 2002
ACJ 868(DB); and Oriental Insurance Co. Ltd. Vs. Madhu Vohra
& Ors. III (2010) ACC 565 and a judgment of the Allahabad High
Court in U.P. State Road Transport Corporation v. Rajani & Ors.,
2007 ACJ 1771(DB).
17. In the case of Om Wati (Supra), there was a collision between
a truck and a car coming from opposite direction, resulting in the
death of two passengers in the car. The Tribunal held that the truck-
driver and car-driver were both negligent in the ratio of 70:30. The
question arose as to the extent of the liability of the insurer of the
truck and whether the claimants were liable to forgo their 30% share
of compensation because they had failed to implead the driver, owner
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
and insurer of the car involved in the accident. It was in this context
that a Division Bench of this court held as follows:-
"9. Coming to the question of apportionment, it
seems to us that First Appellate Court was in
error in holding that claimants would have to
forego 30 per cent share of their awarded
compensation in favour of the joint tort-feasors
of the truck present before the Court as they
had failed to implead tort-feasors of the car as
party-respondents in their claim suits. This is
because the accident could not be wholly
treated to be the result of contributory
negligence. Even if it was assumed that the
drivers of the two vehicles contributed to the
accident in some measure, the other two
deceased who were travelling in the car could
not be held responsible for any such
negligence. Therefore, it was a case of
composite negligence in their case. 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 wrong-doer is
liable for the whole damage if it is otherwise
made out. In other words the liability of two
sets of tort-feasors becomes both joint and
several.
10. It logically follows from this that a claimant
could choose to file a claim petition against all
or any one of them and it was not necessary
that he should implead all joint tort-feasors as
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
party respondents because they were only
proper parties and not necessary parties. It may
as well be that claimant had not set up a case of
composite negligence but if there was material
on record to suggest so, neither Tribunal nor
Court was disabled or incompetent to record a
finding in this regard. Support for this is
derived from a DB judgment of Gujarat High
Court in Hiraben Bhaga v. Gujarat State Road
Transport Corporation, 1982 ACJ(Supp) 414
(Gujarat), holding as under:
"It passes one's understanding as to
how could a passenger's
compensation be deducted on
account of the contributory
negligence of the driver of a vehicle.
It is entirely the choice of the
claimant whether to implead both the
joint tort-feasors or either of them.
The claimants cannot be saddled with
the liability for contributory
negligence of one of the joint tort-
feasors, if they fail to implead him as
one of the opponents, in their claim
petition. It would be for the
impleaded joint tort-feasor to take
proceedings to get the other joint tort-
feasors impleaded in the claim
petition, or for that matter such an
impleaded joint tort-feasor may select
to sue the other one after the decree
or award is given and the other joint
tort-feasor is held liable therein. It
would be, however, quite a different
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
argument to advance that because the
claimants did not sue one of the tort-
feasors, they themselves should be
held liable for the deduction of the
amount, which the omitted joint tort-
feasor would have been called upon
to pay. Thus, there would be no
deduction in the amount of
compensation awarded to the
appellants as done by the Tribunal."
11. We, therefore, hold that it was a case of
composite negligence in case of Shiv Singh and
Sat Pal and their claimants had an option to file
the claim petition either against all or any one
of the joint tort-feasors and their failure to
implead the tort-feasors of the car was not fatal
for their claim and that First Appellate Court
had wrongly forfeited their 30% share of
awarded compensation amount for this which
they were entitled to recover from the appellant
company, being insurer of tort-feasors‟ truck.
It would then be open to the company to
recover such amount from the owner/insurer of
the car jointly or severally."
18. In Angoori Devi's case (Supra), two trucks were involved in
an accident in which a class IV employee of NCERT, who happened
to be in one of the said trucks was killed. The Motor Accident
Claims Tribunal found it to be a case of composite negligence and
apportioned liability of respondents No.1, 2 and 3 jointly and
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
severally at 75% and that of the respondents No.4 and 5 at 25%. No
liability was fastened on the respondent No.6 (the insurer of one of
the trucks) for being untraceable perhaps. The insurer of the other
truck filed an appeal against this award on various grounds and the
appellants/claimants also filed cross-objections. The insurer‟s appeal
was dismissed but the appellant‟s cross-objections were allowed
enhancing the compensation. Dissatisfied with this, the claimants
filed a further appeal and one of the grounds raised was that the
Motor Accident Claims Tribunal and the First Appellate Court had
fallen in error in apportioning the liability of 75% on respondents No.
1, 2 and 3 and 25% on respondents No.4 and 5 when no such
apportionment was permissible in the case of composite negligence.
A Division Bench of this court held that a plain reading of Section
168 of the Motor Vehicles Act, 1988 leaves no scope for doubt that it
extends the jurisdiction of the Tribunal to awarding the compensation
amount against all or some of the tort-feasors or even one of the tort-
feasors. It further held as under:-
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
"20. We accordingly hold that apportionment
of liability was not a taboo and was permissible
even in a case of composite negligence and
Tribunal was competent to apportion and
specify liability of two sets of tort feasors
though it was open to claimant/s to recover the
whole compensation amount from one of them
where the other one defaulted."
19. In the case of Madhu Vohra (Supra), one Amit Vohra
alongwith his wife and children was travelling in a car being driven
by his brother when a truck going ahead of the car suddenly stopped
without any signal or indication and the car dashed against the tail-
board of the truck, resulting in injuries to the occupants of the car and
on the spot death of the daughter of the family and the demise of the
said Amit Vohra in hospital. Before the learned Tribunal, a plea was
raised that the accident was the result of contributory negligence. The
Tribunal negated the said plea by observing that the issue of
contributory negligence did not arise since it was nobody‟s case that
the deceased was driving the offending car and at the most it could be
a case of composite negligence on the part of the truck driver and car
driver as he was not keeping a safe distance from the truck ahead.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
The Tribunal then proceeded to award compensation to the claimants.
In appeal, the appellant-Insurance Company contended that the trial
court despite holding that it was a case of composite liability had not
apportioned the payment of award amount amongst the two tort-
feasors. Referring to and relying upon the judgment of this court
rendered in Om Wati's case (Supra) and the judgment of Division
Bench of the Allahabad High Court in the case of Rajani & Ors.
(Supra), a learned single Judge of this court held that the Tribunal
had rightly observed that the entire awarded amount could be claimed
from the appellant-Insurance Company, for the Tribunal was
competent to direct anyone of the joint tort-feasors to satisfy the
award, though it could direct recovery from other tort-feasors.
20. It may be noted that the Division Bench of the Allahabad High
Court in the case of Rajani & Ors.(Supra) observed as under:-
".................. In a case, where all the joint tort-
feasors have been brought on record, it is needless
to say that Tribunal is under statutory duty to
specify the amount which shall be paid by driver or
owner or insurer of the vehicles involved in the
accident. The apportionment of liability amongst
the individual joint tort-feasors has to be done by
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
Tribunal to the extent their negligence contributed
to the damage caused to the victim of the accident.
Thus in case of insurers to the extent of their
liability covered by insurance policy or under
statute. The said provision, in our view, is only
intended to the extent possible, to avoid multiplicity
of proceedings inter se between the drivers, owners
and insurers of the two vehicles and to the extent
possible to give a finality to their
liability........................................"
"Thus in case of an accident caused by composite
negligence of two motor vehicles, where one
vehicle is insured and another is not covered by
valid insurance policy and both are impleaded as
party and also heard, it is open to the Tribunal after
specifying their respective liability to the extent of
damage contributed, direct the owner or insurer of
vehicle insured to pay entire amount of award to the
claimants and recover the excess amount so paid
over and above his or its liability from the owner or
driver of the another vehicle involved in such
accident."
21. The aforesaid decisions in my view are of no avail to the
appellant-Insurance Company though undoubtedly the law laid down
therein is well settled. The question of composite negligence and the
apportionment of liability between the respective driver, owner and
insurer of the two vehicles in each case is a question of fact to be
determined by the Tribunal on the evidence adduced before it. Then
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
again, it is open to the claimants to claim compensation from all or
any of the joint tort-feasors. It is also open to the Tribunal to hold
from the evidence on record that only one of the tort-feasors was
liable for the accident or all the tort-feasors were liable for their rash
and negligent act and to apportion the ratio of liability between each
of the tort-feasors. No hard and fast rule can be laid down as each
case must be determined on its own facts.
22. On facts, adverting first to the site plan prepared by the
Investigating Officer, a perusal thereof, in my view, negates the
contention of Ms. Raman, the learned counsel for the appellant-
Insurance Company, that the truck was parked partly on the mud and
partly on the metalled portion of the road, inasmuch as it clearly
shows that though the truck is shown to be parked towards the left
side of the road, yet it is parked on the metalled portion. The site plan
also does not show any stones, tree branches, bushes, red cloth or any
other indication, as was deposed by RW-1 to have been placed on or
near the stationary trailor. The site plan also does not reflect the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
presence of any street light or any other source of light, such as
lantern, parking lights, etc.
23. In the testimony of RW-1 Mani Ram also, there is not a
whisper about any lantern and all that is stated is that stones were
placed on the rear side of the trailor and tree branches were also
placed by the side of the stones. Significantly, however, there is no
mention of stones and tree branches in the joint written statement
filed by the respondents No.4 and 5. Then again, whereas in his
testimony RW-1 Mani Ram had stated that there was sufficient street
light on the road to show the stationary trailor, it is not so stated in the
written statement filed by him. Thus, clearly, to my mind, the
testimony of this witness cannot be believed in the absence of any
indication in the site plan that there was any red cloth or street lights
or stones, bushes, etc. All the aforesaid appear to be an after-thought.
Moreover, there is no reason to disbelieve the testimonies of the
seven witnesses examined from the side of the petitioners, who have
in one voice deposed that the trailor could not be seen at the time of
the occurrence, and that there was no indication to show that the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
trailor was stationary on the road. Even otherwise, had there been an
iota of truth in the testimony of RW-1, Mani Ram, the Investigating
Officer would have been produced in the witness box by the appellant
and asked as to why in the site plan prepared by him, he had not
reflected the presence of street lights, red flag, stones, bushes, etc. to
indicate the presence of the trailor in the bus-lane, but they failed
miserably to do so.
24. It would be apposite at this juncture to reproduce the relevant
provisions of the Motor Vehicles Act on the aspect of parking of a
vehicle in such a condition as to cause dangerous obstruction or cause
undue inconvenience to other users of the road. The said Sections
read as under:-
Section 122- Leaving vehicle in dangerous
Position:-
No person in charge of a motor vehicle shall
cause or allow the vehicle or any trailor to be
abandoned or to remain at rest on any public
place in such a position or in such a condition
or in such circumstances as to cause or likely to
cause danger, obstruction or undue
inconvenience to other users of the public place
or to the passengers.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
Section 126- Stationary vehicles:-
No person driving or in charge of a motor
vehicle shall cause or allow the vehicle to
remain stationary in any public place, unless
there is in the driver‟s seat a person duly
licensed to drive the vehicle or unless the
mechanism has been stopped and a brake or
brakes applied or such other measures taken as
to ensure that the vehicle cannot accidentally be
put in motion in the absence of the driver.
25. From the aforesaid, it is clear that the law mandates that no
person in-charge of a motor vehicle or any trailor shall allow the same
to remain on the road in such a position or in such a condition or in
such circumstances as to cause danger, obstruction or undue
inconvenience to other users of the road. Parking of the trailor on the
metalled portion of the Ring Road without taking any due and
reasonable care to indicate that the trailor stood parked in the bus lane
must, therefore, be construed as an act of negligence, more so when
the said trailor was carrying angle iron/saria which was dangerously
protruding out. The Motor Accident Claims Tribunal has, thus, to my
mind, correctly held that the driver of the trailor was negligent and I
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
find no cogent ground to interfere with the well-reasoned findings of
the Tribunal on this aspect.
26. Resultantly, the appeals filed by the Insurance Company,
namely, MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006,
323-24/2006, 326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006,
337-38/2006 and 345-46/2006 are dismissed.
CM No.12506/2007 in MAC. APP. No.321-322/2006 titled as
"National Insurance Company Ltd. & Anr. Vs. Sudesh Chabra &
Ors."
27. By way of these cross-objections, the respondents/claimants
viz., the widow and two minor daughters of the deceased, seek
enhancement of the compensation awarded to them on account of the
accidental death of their bread-earner Shri Mahesh Chabra. The
respondent No.1 is the widow of the deceased and the respondents
No.2 and 3 are the daughters.
28. In order to substantiate the averments made in the Claim
Petition filed by her, the widow of the deceased appeared in the
witness box as PW-6 to depose that her husband was doing wholesale
and retail business of sale of fruits and vegetables and was also
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
running a hotel in Azadpur Mandi. She further deposed that he was
35 years of age on the date of the incident and was earning ` 18,000/-
to ` 20,000/- per month.
29. The learned Tribunal, however, held that since no authentic
proof of age had been tendered by the petitioners/claimants, the age
of the deceased Mahesh Chabra must be held to be 40 years on the
date of the accident. The learned Tribunal further observed that
except for the bald statement of PW-6, the wife of the deceased, that
he was earning ` 18,000/- to ` 20,000/- per month, there was no
evidence on record with regard to the income of the deceased. PW-6
had not proved any income tax return or any statement of account or
even any licence to show that the deceased was authorized to sell
fruits and vegetables at Azadpur Mandi or to run a hotel there. There
was also no evidence on record to show that he had any permanent
place of business in the said Mandi. In the absence of such evidence,
the learned Tribunal took recourse to the Minimum Wages for a non-
matriculate which were in the sum of ` 2,130/- per month, and after
taking into account the future prospects of increase in the minimum
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
wages of the deceased, assessed the average monthly income of the
deceased to be in the sum of ` 3,195/- per month. Deducting one-
third therefrom for the personal expenses and maintenance of the
deceased, the Tribunal assessed the average annual loss of
dependency of the claimants to be in the sum of ` 25,560/- per annum
and proceeded to augment this figure with the multiplier of 15,
thereby assessing the total loss of the dependency of the petitioners to
be ` 3,83,400/-. It held that apart from this amount, the claimants
were entitled to receive a sum of ` 10,000/- towards the loss of estate
and loss of love and affection of the deceased, a sum of ` 5,000/-
for the last rites of the deceased and also held the respondent No.1,
the widow of the deceased was entitled to ` 20,000/- towards the loss
of consortium. Thus, in all, the Tribunal awarded a sum of
` 4,18,400/- rounded off to ` 4,18,000/- (including the amount of
interim award) with interest at the rate of 7.5% per annum from the
date of the institution of the petition till the date of realization of the
award amount.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
30. A two-fold contention was raised by Mr. O.P. Mannie, the
learned counsel for the respondents/claimants to assail the award. His
first contention is that the deceased left behind him four dependants,
that is, his widow, his two minor daughters and a minor son. Thus,
the learned Tribunal ought to have made a deduction of one-fourth
from his average annual income towards his personal expenses and
maintenance, instead of one-third. I am not inclined to agree with the
aforesaid contention for the reason that the minor son of the deceased,
namely, Pankaj Chabra, died in the same accident as his father, the
deceased Mahesh Chabra, and he, therefore, left behind three legal
representatives being his widow and two minor daughters. The
learned Tribunal, thus, rightly deducted one-third (1/3rd) of the
income of the deceased towards his personal expenses.
31. The second contention of Mr. Mannie, the learned counsel for
the respondents is that a meagre sum of ` 10,000/- has been awarded
by the Tribunal towards the loss of estate and loss of love and
affection of the deceased and the said amount deserves to be
enhanced. Reliance in this context has been placed by Mr. Mannie on
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
a recent judgment of the Supreme Court rendered in the case of Sh.
K.R. Madhusudan and Ors. Vs. Administration Officer and Anr.
2011 (2) Scale 511, wherein a sum of ` 25,000/- was awarded by the
Supreme Court for the loss of love and affection of the deceased.
Although, I am of the view that Madhusudan's case (supra) does not
lay down as a rule of thumb that in each case a sum of ` 25,000/-
should be awarded for the loss of love and affection, I am inclined to
enhance the amount of compensation awarded under the head of loss
of love and affection by holding that apart from the sum of ` 10,000/-
awarded towards loss of estate, the respondents shall be entitled to a
sum of ` 30,000/- towards the loss of love and affection of the
deceased.
32. In view of the aforesaid, the respondents-objectors shall be
entitled to the award of ` 4,48,000/- with interest at the rate of 7.5%
per annum from the date of the filing of the petition till the date of
realization of the award amount. The award amount thus stands
enhanced from ` 4,18,000/- to ` 4,48,000/- with proportionate
interest thereon.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
33. The enhanced amount shall be deposited by the Insurance
Company within 30 days of the date of the passing of this order with
the Registrar General of this court and shall enure solely to the benefit
of the widow of the deceased.
34. CM No.12506/2007 stands disposed of accordingly.
CM No.12496/2007 in MAC. APP. No.337-38/2006 titled as
"National Insurance Co. Ltd. & Anr. Vs. Sudesh Chhabra & Ors."
35. These cross-objections relate to the enhancement of
compensation awarded in Suit No.648/2003 (old suit No.1238/1998)
titled as "Smt. Sudesh Chabra & Ors. Vs. Mani Ram & Ors." on
account of the death of one Pankaj Chabra, aged 14-15 years. The
respondents/objectors are the mother and two minor sisters of the
deceased.
36. As noticed above, Shri Mahesh Chabra, the father of the
deceased died in the same accident in which the deceased lost his life.
According to the testimony of PW6 Smt. Sudesh Chabra, her son was
aged 15 years at the time of the accident and was a student of class 9 th
with a brilliant academic record and was earning about ` 2,000/- per
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
month from tuitions. In the course of her cross-examination,
however, she admitted that she did not have any document to prove
the aforesaid facts by way of school records, etc., though she stated
that her son was studying in a Government School at Paharganj.
37. The learned Tribunal taking note of the judgments rendered by
the Supreme Court in the case of Lata Wadhwa & Ors. vs. State of
Bihar& Ors., 2001 ACJ 1735 and in M.S. Grewal and Anr. vs. Deep
Chand Sood and Ors., 2001 ACJ 1719, held that from the evidence
on record though no definite amount of expected pecuniary benefits
to the claimants could be assessed, it could not be said that the
deceased had no capacity to earn or that he would not have earned
anything in his life. The Tribunal, therefore, proceeded to make a
rough estimate of the expectation of pecuniary benefits, opining that
even by a conservative estimate the deceased would have earned at
least ` 1,000/- per month for his parents. It then held that the age of
the mother of the deceased being 35 years as deposed by her, a
multiplier of 16 would be applicable. The Tribunal accordingly held
that the respondents/objectors were entitled to compensation in the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
sum of ` 1,92,000/- (that is, ` 1000 x 12 x 16), apart from a sum of
` 10,000/- for loss of love and affection and ` 5,000/- for funeral rites
and ceremonies, that is, in all ` 2,07,000/-, including the amount of
the interim award. Aggrieved from the findings of the learned
Tribunal, the claimants have preferred these cross-objections praying
for enhancement of the award amount.
38. In the course of hearing these cross-objections, Mr. O.P.
Mannie, the learned counsel for the objectors/claimants heavily relied
upon the judgment of the Supreme Court rendered in the case of R.K.
Malik and Anr. vs. Kiran Pal and Ors., (2009) 14 SCC 1 to contend
that the award amount deserves to be enhanced. In the said case,
twenty-nine school-going children were drowned as the result of a
road accident caused by the overturning of the bus in which the said
children were proceeding to the school, which bus after overrunning
the road and breaking the railing got drowned in the Yamuna river at
Wazirabad Yamuna Bridge. The Tribunal, by its common judgment,
awarded a sum of ` 1,55,000/- to the dependents of the children
between the age group of 10 to 15 years and ` 1,65,000/- to the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
dependents of children between 15 to 18 years. In the case of three
children who were less than 10 years, the Tribunal awarded
compensation of ` 1,05,000/-, ` 1,30,000/- and ` 1,31,000/- in their
respective cases. Against the said order of the Tribunal, appeals were
filed before the High Court, which were heard together by the High
Court. The High Court by its common order held that the appellants
were entitled to enhancement of compensation in all the cases by
` 75,000/- and ` 1,000/- (if not already awarded by the Tribunal) and
interest at the rate of 7.5% per annum from the date of the filing of
the petition till payment. Feeling aggrieved, a Special Leave Petition
was filed by the appellants, contending that the High Court ought to
have applied the ratio of Lata Wadhwa and Ors. vs. State of Bihar
and ors., (2001) 8 SCC 197 to the facts of the case and also that it had
failed to award a fair and reasonable compensation. The Supreme
Court, observing that compensation in cases of motor accidents, as in
other matters, is paid to the claimants/dependants of the deceased
persons for reparation of damages, and to put them in the pre-
accidental position, held that the damages so awarded should be an
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
adequate sum of money that would put the party, who has suffered, in
the same position if he had not suffered on account of the wrong
committed. Compensation is, therefore, required to be paid for
prospective pecuniary loss. On the aspect of computation of
compensation, after noticing that the Act provided for payment of
„just compensation‟ vide Sections 166 and 168 of the Motor Vehicles
Act, 1988, the Court observed that it had repeatedly been held that it
is the multiplier method which should be applied as the said method
is based upon the principle that the claimant must be paid a capital
sum, which would yield interest to provide material benefits of the
same standard and duration as the deceased would have provided for
the dependents, if the deceased had lived and earned. The Court
further observed that uniform application of the multiplier method
ensures consistency and certainty and prevents different amounts
being awarded in different cases.
39. Ms. Shantha Devi Raman, the learned counsel for the Insurance
Company was unable to give any cogent reason as to why this Court
should not re-compute the compensation in accordance with the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
principles of law enunciated by the Supreme Court in the case of R.K.
Malik (supra). It is accordingly proposed to re-calculate the
compensation payable to the legal representatives of the deceased
Pankaj Chabra in consonance with the law laid down in the said case.
Thus, assuming the notional income of the deceased to be in the sum
of ` 15,000/- per month in terms of the Second Schedule to the Motor
Vehicles Act and applying the multiplier of 16, as applied by the
learned Tribunal and as set out in the Second Schedule, the
compensation on the basis of the notional income of the deceased
after deducting one-third (1/3rd) towards the personal expenses of the
deceased comes to ` 10,000/- x 16 = ` 1,60,000/-. As regards the
future prospects of the deceased, the mother of the deceased (PW6
Smt. Sudesh Chabra) stated on oath that the deceased was good in
academics and was a student of standard IX in a Government School.
In the absence of evidence to the contrary, there is no reason to
disbelieve the testimony of this witness. Accordingly, in consonance
with the judgment in the case of R.K. Malik (supra), a sum of `
75,000/- is awarded towards the future prospects of the deceased child
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
and a further sum of ` 75,000/- for the non-pecuniary damages
sustained by the mother and sisters of the deceased, in all, a sum of `
3,10,000/-. The award amount thus stands enhanced from `2,07,000/-
to ` 3,10,000/- payable alongwith interest at the rate of 7.5% per
annum as awarded by the learned Tribunal from the date of the
institution of the petition till the date of realisation.
40. The enhanced amount shall be deposited by the Insurance
Company within 30 days of the date of the passing of this order with
the Registrar General of this court and shall enure solely to the benefit
of the mother of the deceased.
41. CM No.12496/2007 stands disposed of accordingly.
CM No.12516/2007 in MAC. APP. No.328-329/2006 titled as
"National Insurance Co. Ltd. and Anr.Vs. Baljeet Kaur and Ors."
42. These cross-objections relate to the award passed in Suit
No.645/2003 (old suit No.29/1999) titled as "Baljeet Kaur and Ors.
Vs. Ajay Kumar & Ors." on account of the death of one Satinder
Pal Singh, whereby a sum of `4,44,000/- was awarded to the legal
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
representatives of the deceased alongwith interest at the rate of 7.5%
per annum .
43. The respondents/objectors are the widow and two minor
children of the deceased. At the time of hearing, the sole contention
of Mr. O.P. Mannie, the learned counsel for the claimants/objectors
was that a paltry amount of ` 10,000/- had been awarded by the
learned Claims Tribunal under the heads of loss of estate and loss of
love and affection of the deceased. The remaining grounds of appeal
were not pressed.
44. In view of the fact that the deceased was survived by his widow
and two minor children, I am inclined to enhance the amount of
compensation awarded under the head of loss of love and affection by
holding that apart from the sum of ` 10,000/- awarded towards loss of
estate, the claimants/objectors shall be entitled to a sum of ` 10,000/-
each towards the loss of love and affection of the deceased.
Resultantly, the award amount stands enhanced from ` 4,44,000/- to
` 4,74,000/-. The rest of the award is upheld.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
45. The enhanced amount shall be deposited by the Insurance
Company within 30 days of the date of the passing of this order with
the Registrar General of this court and shall enure solely to the benefit
of the widow of the deceased.
46. CM No.12516/2007 stands disposed of accordingly.
CM No.12499/2007 in MAC. APP. No.333-34/2006 titled as
"National Insurance Co. Ltd. and Anr. Vs. Dalip Kaur and Ors."
47. These cross-objections relate to enhancement of compensation
awarded in Suit No.649A/2003 titled as "Dalip Kaur and Ors. Vs.
Mani Ram & Ors." on account of the death of one Fauja Singh.
The respondents/objectors are the widow and five minor children of
the deceased.
48. In order to substantiate the averments made in the Claim
Petition, the respondent/objector No.1 Dalip Kaur examined herself
as PW8 and deposed that the deceased was doing the business of
wholesale and retail of fruits and vegetables and was also running a
hotel in Azadpur Mandi. She further deposed that he was 42 years of
age on the date of the accident and was earning ` 20,000/- to
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
` 25,000/- per month. In the course of her cross-examination, she
stated that her husband might have studied upto the 6th or the 7th class.
49. The learned Tribunal held that since no authentic proof of age
or education had been tendered by the claimants (petitioners in the
Claim Petition), the age of the deceased Fauja Singh as on the date of
the accident must be held to be 50 years on the basis of the post-
mortem report of the deceased. The learned Tribunal further
observed that except for the bald statement of PW8, the wife of the
deceased, that he was earning ` 20,000/- to ` 25,000/- per month,
there was no evidence on record with regard to the income of the
deceased and that in the absence of any such evidence, the only
course left open to it was to take recourse to the Minimum Wages
Act. The learned Tribunal further observed that since the deceased
was not a labourer, it would be appropriate to take the minimum wage
rate as applicable to a non-matriculate on the date of the accident. In
this manner, the learned Tribunal assessed the average monthly
income of the deceased to be in the sum of ` 2,130/- per month and
after taking into account the future prospects of the deceased,
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
estimated the income of the deceased to be ` 3,195/- per month.
Deducting one-third (1/3rd) therefrom for the personal expenses and
maintenance of the deceased, the learned Tribunal assessed the annual
loss of dependency of the legal representatives of the deceased to be
` 25,560/- per annum. It then augmented the said multiplicand with
the multiplier of 11, thereby calculating the total loss of dependency
of the claimants in the sum of ` 2,81,160/-. It further held that apart
from this amount, the claimants were entitled to receive a sum of `
10,000/- towards the loss of estate and loss of love and affection of
the deceased, a sum of ` 5,000/- for the last rites of the deceased and
also held the claimant No.1 to be entitled to ` 20,000/- towards the
loss of consortium. Thus, in all, the Tribunal awarded a total sum of
` 3,16,000/- (including the amount of the interim award) to the legal
representatives of the deceased alongwith interest at the rate of 7.5%
p.a. from the date of institution of the petition till the date of
realisation of the award amount.
50. Mr. O.P. Mannie, the learned counsel for the
respondents/objectors challenged the award on two counts. His first
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
contention is that the deceased left behind him six legal
representatives, that is, his widow and five children. Thus, the
learned Tribunal ought to have made a deduction of one-fourth from
his average annual income towards his personal expenses and
maintenance, instead of one-third. I am inclined to agree with the
aforesaid contention for the reason that the Supreme Court in the case
of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and
Anr., (2009) 6 SCC 121 has laid down certain guidelines to be
uniformly followed by all Tribunals and Courts and one of the said
guidelines, which pertains to the deduction to be made from the
income of the deceased for the purpose of computing the loss of
dependency of his legal representatives, reads thus:-
"14. Though in some cases the deduction to be
made towards personal and living expenses is
calculated on the basis of units indicated in
Trilok Chandra, the general practice is to apply
standardized deductions. Having considered
several subsequent decisions of this Court, we
are of the view that where the deceased was
married, the deduction towards personal and
living expenses of the deceased, should be one-
third (1/3rd) where the number of dependent
family members is 2 to 3, one-fourth (1/4th)
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
where the number of dependant family
members is 4 to 6, and one-fifth (1/5th) where
the number of dependant family members
exceed six."
51. Thus calculated, the average annual loss of dependency of the
objectors works out to ` 28,755/- per annum (that is, ` 3,195 x 3/4 x
12). Augmenting the said multiplicand by the multiplier of 11, as
applied by the learned Tribunal and to which no challenge has been
raised, the total loss of dependency of the claimants/objectors comes
to ` 28,755 x 11 = ` 3,16,305/- which may be rounded off to
` 3,16,000/- ( Rupees Three Lacs Sixteen Thousand Only).
52. The second contention of Mr. Mannie, the learned counsel for
the appellants is that a meagre sum of ` 10,000/- has been awarded by
the Tribunal towards the loss of estate and loss of love and affection
of the deceased and the said amount deserves to be enhanced.
Reliance in this context has been placed by Mr. Mannie on a recent
judgment of the Supreme Court rendered in the case of K.R.Madhu
sudan (supra), wherein a sum of ` 25,000/- was awarded by the
Supreme Court for the loss of love and affection of the deceased.
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
Although, as stated hereinabove, I am of the view that Madhusudan's
case (supra) does not lay down as a rule of thumb that in each case a
sum of ` 25,000/- should be awarded for the loss of love and
affection, I am inclined to enhance the amount of compensation
awarded under the head of loss of love and affection by holding that
apart from the sum of ` 10,000/- awarded towards loss of estate, the
objectors shall be entitled to a sum of ` 50,000/- towards the loss of
love and affection of the deceased, that is, in all a sum of ` 4,01,000/-
is awarded to the claimants/respondents No.1 to 6.
49. In view of the aforesaid, the respondents/objectors shall be
entitled to the award of `4,01,000/- with interest at the rate of 7.5%
per annum from the date of the filing of the petition till the date of
realization of the award amount. The award amount thus stands
enhanced from ` 3,16,000/- to ` 4,01,000/- with proportionate
interest thereon.
50. The enhanced amount shall be deposited by the Insurance
Company within 30 days of the date of passing of this order with the
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
Registrar General of this court and shall enure solely to the benefit of
the widow of the deceased.
51. CM No.12499/2007 stands disposed of accordingly.
52. Records of the learned Tribunal be sent back to the concerned
Tribunal.
REVA KHETRAPAL
(JUDGE)
October 17, 2011
sk
MAC APP. Nos.321-22/2006, 317-18/2006, 319-20/2006, 323-24/2006
326-27/2006, 328-29/2006, 333-34/2006, 335-36/2006, 337-38/2006,
