Delhi High Court
Kuldeep Kaur & Ors vs Jai Parkash & Ors on 11 December, 2014
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision 11.12.2014
+ MAC.APP. 767/2010
KULDEEP KAUR & ORS ..... Appellants
Through Mr. O.P. Mannie, Adv.
versus
JAI PARKASH & ORS ..... Respondents
Through Mr. A.K. Soni, Adv. for Mr. Pradeep
Gaur, Adv. for R-2.
Ms. Neelam Singh, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed seeking enhancement of compensation as per
award dated 21st February, 2009. The brief facts which led to filing of the
claim petition are that the deceased Kanwaljeet Singh was travelling alongwith
the other co-passengers in a Maruti car. They were coming from Rohtak side
towards Delhi. At Jakhoda village, the Maruti car was hit by a Tata Sumo said
to be driven in a rash and negligent manner. The maruti car was also said to be
driven by its driver in a rash and negligent manner. The deceased Kanwaljeet
Singh and two other occupants of maruti car sustained fatal injuries.
2. Based on the evidence on the record the tribunal awarded to the
claimants a total compensation of Rs.18,61,000/- as follows:
Loss of dependency Rs.18,11,000/-
Loss of Love and affection Rs.40,000/-
Funeral Expenses Rs.5,000/-
Loss to estate Rs.5,000/-
Total compensation Rs.18,61,000/-
3. On issue of liability the tribunal held that the accident took place due to
the negligence on the part of driver of Maruti car in which the deceased was
travelling and the driver of the Tata Sumo. It was hence held to be the case of
composite negligence. The insurance company of the Maruti car and the owner
and driver of the Tata Sumo (as the Tata Sumo was not insured) were held
liable to satisfy the award amount in the proportion of 50% each.
4. Learned counsel appearing for the appellant seeks enhancement of
compensation on two grounds. He firstly submits that after having computed
the income of the deceased at Rs.13,414/- per month, the tribunal did not
enhance the said amount for computing loss of dependency on account of
future prospects keeping into account the fact that the deceased at the time of
the accident was 45 years old. He further submits that compensation for non-
pecuniary damages is grossly inadequate keeping into account the fact that the
deceased was survived by his wife, three minor children and aged parents. He
lastly submits that it was a case of composite negligence. He relies upon the
judgment of the Supreme Court in Pawan Kumar and Anr. v. Harkishan Dass
Mohan Lal and Others, 2014 ACJ 704 to contend that in a case of composite
negligence there is no apportionment of liability and the owner and insurer of
both the concerned vehicles are jointly and severally liable to pay the liability.
5. As far as the issue of future prospects are concerned, keeping in view the
judgments of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh
& Ors., 2013 (6) SCALE 563, Smt.Savita vs. Bindar Singh & Ors., (2014) 4
SCC 505 and V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the loss of
dependency is liable to be enhanced and the assessed income of deceased at
13,414/- is liable to be increased by 30% on account of future prospects. It is
on record that the deceased was an employee of a government organization ie,
Employees Provident Fund Organization. The loss of dependency hence now
work out as Rs.23,154,157/- [(Rs.13,414 + 30% - ¼) x 12 x 15].
6. Coming to non-pecuniary damages, the tribunal has awarded loss of love
and affection at Rs.40,000/-, funeral expenses at Rs.5,000/- and loss of estate at
Rs.5,000/-. The tribunal has awarded no amount for loss of consortium.
7. Keeping in view that the accident took place on 23.5.2005 and the fact
that there are three minor children, I enhance the compensation under loss of
love and affection to Rs.75,000/-. I also award a sum of Rs.50,000/- on
account of loss of consortium.
8. The total compensation now payable would be as follows:
Loss of Dependency Rs.23,54,157/-
Loss of love and affection Rs.75,000/-
Loss of consortium Rs.50,000/-
Funeral expenses Rs.5,000/-
Loss of estate Rs.5,000/-
Total Rs.24,89,157/-
9. Coming to the issue of composite negligence in Pawan Kumar and Anr.
v. Harkishan Dass Mohan Lal and Others (supra), the Supreme Court quoted
with approval the judgment in T.O. Anthony vs. Karvarnam, 2008 ACJ 1165
and quoted the present para from the said judgment as follows:
"(6) „Composite negligence‟ refers to the negligence on the
part of two or more persons. Where a person is injured as a
result of negligence on the part of two or more wrongdoers,
it is said that the person was injured on account of the
composite negligence of those wrongdoers. In such a case,
each wrongdoer is jointly and severally liable to the injured
for payment of the entire damages and the injured person
has the choice of proceeding against all or any of them. In
such a case, the injured need not establish the extent of
responsibility of each wrongdoer separately, nor is it
necessary for the court to determine the extent of liability of
each wrongdoer separately. On the other hand where a
person suffers injury, partly due to the negligence on the
part of another person or persons, and partly as a result of
his own negligence, then the negligence on the part of the
injured which contributed to the accident is referred to as his
contributory negligence. Where the injured is guilty of some
negligence, his claim for damages is not defeated merely by
reason of the negligence on his part but the damages
recoverable by him in respect of the injuries stand reduced
in proportion to his contributory negligence."
10. In view of the above legal position, and the facts of this case, the
tribunal has concluded that accident took place due to the composite negligence
on the part of Maruti car and the Tata Sumo. Accordingly the tribunal was in
error in directing that the award has to be satisfied by the respective parties in
proportion of 50% . In view of the fact that liability would be joint and several
and the claimants are entitled to enforce the award against both i.e. insurance
company of the Maruti Car or the owner of driver of the Tata Sumo or any of
them.
11. In view of the above the present appeal stands disposed of. The
additional compensation amount be deposited by the respondent no.2/insurance
company along with interest @ 7.5% p.a. from the date of filing of the claim
petition till deposit before the Registrar General of this court. On receipt of the
said amount the Registrar General may release the same to the claimants
proportionately in the same proportion as directed by the tribunal.
12. At this stage learned counsel appearing for the respondent no.2/insurance
company submits that his clients may be given appropriate recovery rights
against the owner and driver of the Tata Sumo car. Needless to add that it is
for the said respondent no.2 to take whatever steps available to it as permissible
under law.
JAYANT NATH, J
DECEMBER 11, 2014
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