Jharkhand High Court
The New India Assurance Company ... vs Sunaina Devi on 7 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 251 of 2018
The New India Assurance Company Ltd., Garhwa, represented through its Dy.
Manager and Incharge T.P. (Claims) Hub, Ranchi.
.... .. ... Appellant(s)
Versus
1.Sunaina Devi
2.Bipat Sao
3.Nitu Tiwary
4.Harihar Ram .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. G. C. Jha, Advocate.
For the Respondent(s) :
..........
04 / 07.04.2021. Heard, learned counsel for the appellant- The New India Assurance
Company Ltd.
Learned counsel for the appellant has submitted that the deceased (Virendra
Saw), a bachelor, riding on the Motorcycle bearing Registration No.JH14A 8786 was
hit by a Bus-407 bearing Registration No.BR15P-0283.
Learned counsel for the appellant has further submitted that issue involved in
the present case is that though there was head-on collision between the two vehicles,
but the claimants have not impleaded the owner and driver of the offending
motorcycle as party in the claim application, as such, the claim application was itself
not maintainable and fit to be dismissed by the learned Tribunal because of non-
joinder of the necessary party and contributory negligence ought to have been granted
by the learned Tribunal to the extent of 75% and 25% against the bus and Motorcycle
respectively for a head-on collision.
Learned counsel for the appellant has submitted that without any document, the
learned Tribunal has considered the income of the deceased (Virendra Saw) as
Rs.5,000/- per month.
Considering the submission of the learned counsel for the appellant and
perusing the materials available on record including the impugned award, this Court is
conscious of the legal pronouncement enunciated by the Apex Court in the case of
Khenyei vs. New India Assurance Co. Ltd. & Ors., reported in SCC 2015 (9)
SCC 273, wherein the Apex Court has dealt with that issue in para 17 which
reads as follows:-
"17 The question also arises as to the remedies available to one of the
joint tortfeasor from whom compensation has been recovered. When the other
joint tort feasor has not been impleaded, obviously question of negligence of
non-impleaded driver could not be decided. Apportionment of composite
negligence cannot be made in the absence of impleadment of joint tort feasor.
Thus, it would be open to the impleaded joint tortfeasors after making
payment of compensation, so as to sue the other joint tortfeasor and to
recover from him the contribution to the extent of his negligence. However, in
case when both the tortfeasors are before the court/tribunal, if evidence is
sufficient, it may determine the extent of their negligence so that one joint
tortfeasor can recover the amount so determined from the other joint
tortfeasor in the execution proceedings, whereas the claimant has right to
recover the compensation from both or any one of them."
(emphasis supplied)
The same has again been reiterated in para 22 reads as follows:-
"22.What emerges from the aforesaid discussion is as follows:
22.1.In the case of composite negligence, the plaintiff/claimant is entitled to sue
both or any one of the joint tortfeasors and to recover the entire compensation as
liability of joint tortfeasors is joint and several.
22.2.In the case of composite negligence, apportionment of compensation
between two tortfeasor vis-à-vis the plaintiff/claimant is not permissible. He can
recover at his option whole damages from any of them.
22.3.In case all the joint tortfeasors have been impleaded and evidence is
sufficient, it is open to the court/Tribunal to determine inter se extent of
composite negligence of the drivers. However, determination of the extent of
negligence between the joint tortfeasors is only for the purpose of their inter se
liability so that one may recover the sum from the other after making whole of
the payment to the plaintiff/claimant to the extent it has satisfied the liability of
the other. In case both of them have been impleaded and the
apportionment/extent of their negligence has been determined by the
court/Tribunal, in the main case one joint tortfeasor can recover the amount
from the other in the execution proceedings.
22.4.It would not be appropriate for the court/Tribunal to determine the extent of
composite negligence of the drivers of two vehicles in the absence of impleadment of
other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in
case he so desires, to sue the other joint tortfeasor in independent proceedings after
passing of the decree or award."
Under the aforesaid circumstances, it is upon the claimant to sue both the
offending vehicles or to sue one of the offending vehicles for compensation.
In the present case, charge-sheet has only been submitted against the driver of
the offending bus, as such, the issue agitated by the learned counsel for the appellant
is of no use in view of the judgment passed by the Apex Court in the case of Khenyei
(supra).
Further, this Court has considered the income of the deceased (Virendra Saw)
and found that in view of the judgment passed by the Apex Court in the case of
Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, wherein the
Apex Court has considered the income of a carpenter in absence of any documentary
evidence for an occurrence of the year, 2001 to be Rs.5,000/- per month, as such, this
Court is not inclined to accept the contention raised by the learned counsel for the
appellant as the deceased (Virendra Saw) was admittedly a mason lost his life on
23/11/2016.
It appears that the deceased (Virendra Saw) died at the age of 20 years, but the
learned Tribunal has used multiplier of 16 contrary to the judgment passed by the
Apex Court in the case of Sarla Verma (SMT) and Ors. vs. Delhi Transport
Corporation and Anr, reported in (2009) 16 SCC 121, at Para 42 (for the age group
of 15-20), the multiplier ought to have been used as 18, but in absence of any appeal
preferred by the appellant, this Court cannot enhance the same.
Accordingly, the instant Misc. Appeal being devoid of merit is hereby
dismissed.
Consequently, I.A. No. 4205 of 2018 (filed for condonation of delay) and I.A.
No.8327 of 2018 (filed for stay of the Execution Case No.02/2018) are closed.
Learned Registrar General of this Court is directed to remit the Statutory
amount within four weeks to the learned Tribunal/Executing Court which shall be paid
to the claimants and the balance amount of award along with the interest in terms of
the award of learned Tribunal shall be indemnified by the Insurance Company within
a reasonable time as the occurrence is dated 03.12.2014.
(Kailash Prasad Deo, J.)
Sandeep/
