Punjab-Haryana High Court
Ramkali Jain Etc vs Makhan Singh Etc on 25 October, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
102-C FAO-932-2011 (O&M)
Date of Decision : 25.10.2024
RAMKALI JAIN AND ORS .... Appellants
VERSUS
MAKHAN SINGH AND ORS .... Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rajbir Singh, Advocate and
Mr. Sanjeev Goyal, Advocate for the appellants.
Mr. Vinod Gupta, Advocate
for respondent No.4-Insurance Company.
None for respondents No.1, 2 & 3 despite service.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the claimant-appellants
challenging the award dated 15.06.2010 passed by the Motor Accident Claims
Tribunal, Sangrur (hereinafter referred to as 'the Tribunal') qua the amount
compensation as also the findings of the Tribunal whereby the claimant-
appellants were held entitled to recover 50% amount from respondent No.4-
Insurance Company holding it to be a case of composite negligence.
2. Brief facts relevant to the present lis are that on the intervening
night of 04/05.02.2006, deceased i.e. Arun Jain along with Raj Kumar Chopra
son of Likhmi Chand Chopra, Mohinder Bucha son of Poonam Chand,
Rajinder Khatar son of Aska Ram and Rajesh Barmecha son of Chandmal
Barmecha was going from Dhuri to Bhiwani in Santro Car bearing
102-C FAO-932-2011 (O&M) -2-
Registration No.DL-3-CS-7980 after the closing ceremony of Jain Function at
Dhuri. The car was being driven by Rajinder Khatar at a high speed and in a zig
zag manner and at about 12.30 am when they reached near Grain Market, Dirba
the Santro Car struck against a Truck/Trolla bearing Registration No.HR-37-
6209 which was coming from Patran side and was being driven in a negligent
manner. Due to the injuries received, all the occupants were admitted to Civil
Hospital, Sangrur. Rajesh Barmacha and Rajinder Khater were declared brought
dead by the Doctors and Arun Jain, Mohinder Bucha and Raj Kumar Chopra
were admitted and after some time of admission, Mohinder Bucha and Arun Jain
succumbed to their injuries and Raj Kumar Chopra was referred to DMC,
Ludhiana for further treatment. However, he too succumbed to his injuries. The
driver and owner of the Truck/Trolla bearing Registration No.HR-37-6209 as
well as the owner of the Santro Car bearing Registration No.DL-3-CS-7980 and
the insurer of the Santro Car were impleaded as parties. The Tribunal held that it
was a case of composite negligence as the vehicles collided head-on and the
negligence of the driver of the Santro Car was held to be fixed to the extent of
50% and that of the Truck/Trolla to the extent of 50%. The Tribunal awarded the
following compensation :
Sr. No. Heads Compensation Awarded
1. Monthly income ₹6,448
2. Annual income [₹6,448 x 12] = ₹77,376
3. Deduction (50%) [₹77,376 - ₹38,688] = ₹38,688
4. Multiplier of '13' [₹38,688 x 13] = ₹5,02,944
5. Funeral expenses ₹5,000
6. Loss of estate ₹5,000
7. Total Compensation ₹5,12,944
Interest @7.5% per annum
102-C FAO-932-2011 (O&M) -3-
Further, claimant-appellant No.1, namely, Ramkali Jain was held
entitled to the compensation to the tune of ₹3,07,768; claimant-appellant No.2
namely, Tarun Jain was held entitled to ₹1,02,588 and claimant-appellant
No.3 namely, Ashok Jain was held entitled to ₹1,02,588. Still further, 50%
amount of the compensation was directed to be recovered from the owner and
driver of the Truck/Trolla and the remaining 50% from the insurer of Santro
Car i.e. respondent No.4-Insurance Company herein. Aggrieved by the same,
the present appeal has been preferred by the claimant-appellants.
3. Learned counsel for the claimant-appellants has relied upon the
judgment of the Hon'ble Supreme Court in the case of Khenyei vs. New India
Assurance Co. Ltd. & Ors. [2015 (2) RCR (Civil) 1019] to contend that
where it is a case of composite negligence, the claimants are at liberty to
recover the entire compensation from any one of the joint tort-feasors.
Learned counsel for the claimant-appellants would contend that he does not
dispute the income of the deceased, namely, Arun Jain i.e. ₹6,448 per month
as assessed by the Tribunal. It is further the contention that though the
deduction of 50% has rightly been applied, however, no addition has been
made towards future prospectus as per the judgment in the case of National
Insurance Company Ltd. vs. Pranay Sethi & Ors. [(2017) 16 SCC 680].
Even the multiplier of '13' has wrongly been applied which ought to have
been '17' as per the law laid down in the case of Sarla Verma & Ors. vs.
Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]. It is still further
the contention that the amount awarded under the conventional heads and
under the head 'loss of consortium' are also not in accordance with the law
102-C FAO-932-2011 (O&M) -4-
laid down in the cases of Magma General Insurance Company Limited vs.
Nanu Ram alias Chuhru Ram & Ors. [(2018) 18 SCC 130]; N. Jayasree
& Ors. vs. Cholamandalam M.S General Insurance Company Ltd.
[2021(4) RCR (Civil) 642] and Pranay Sethi (supra).
4. Per contra, the learned counsel for respondent No.4-Insurance
Company is not in a position to dispute the proposition of law as laid down in
the case of Khenyei (supra). Learned counsel has, however, vehemently
argued that sufficient amount has already been awarded as compensation in
the present case and that there is no scope of any enhancement.
5. Heard.
6. In the present case, the learned counsel for the respondent No.4-
Insurance Company has no quarrel with the proposition of law as laid down
by the Hon'ble Supreme Court in the case of Khenyei (supra) wherein it has
been held as under :
"14. There is a difference between contributory and
composite negligence. In the case of contributory
negligence, a person who has himself contributed to the
extent cannot claim compensation for the injuries
sustained by him in the accident to the extent of his own
negligence; whereas in the case of composite negligence,
a person who has suffered has not contributed to the
accident but the outcome of combination of negligence of
two or more other persons. This Court in T.O. Anthony v.
Karvarnan & Ors. [2008 (3) SCC 748] has held that in
102-C FAO-932-2011 (O&M) -5-
case of contributory negligence, injured need not establish
the extent of responsibility of each wrong doer separately,
nor is it necessary for the court to determine the extent of
liability of each wrong doer separately. It is only in the
case of contributory negligence that the injured himself
has contributed by his negligence in the accident. Extent
of his negligence is required to be determined as damages
recoverable by him in respect of the injuries have to be
reduced in proportion to his contributory negligence. The
relevant portion is extracted hereunder :
"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 wrong doers, it is said that the person
was injured on account of the composite negligence
of those wrong-doers. In such a case, each wrong
doer, 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 wrong-
doer separately, nor is it necessary for the court to
determine the extent of liability of each wrong- doer
separately. On the other hand where a person
102-C FAO-932-2011 (O&M) -6-
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 of
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 stands reduced in proportion to his
contributory negligence.
7. Therefore, when two vehicles are involved in an
accident, and one of the drivers claims
compensation from the other driver alleging
negligence, and the other driver denies negligence
or claims that the injured claimant himself was
negligent, then it becomes necessary to consider
whether the injured claimant was negligent and if
so, whether he was solely or partly responsible for
the accident and the extent of his responsibility, that
is his contributory negligence. Therefore where the
injured is himself partly liable, the principle of
'composite negligence' will not apply nor can there
be an automatic inference that the negligence was
102-C FAO-932-2011 (O&M) -7-
50:50 as has been assumed in this case. The
Tribunal ought to have examined the extent of
contributory negligence of the appellant and
thereby avoided confusion between composite
negligence and contributory negligence. The High
Court has failed to correct the said error."
In view of the law laid down, there can be no dispute that the
amount can be recovered from either of the joint tort-feasors and hence the
claimant-appellants would be at liberty to recover the same from either of the
tort-feasors as desired by them.
7. In the present case the income of the deceased, as assessed by the
Tribunal, is not disputed and hence the same is maintained i.e. ₹6,448 per
month. Though the deduction of 50% has rightly been applied, however, no
addition has been made towards future prospects and hence as per the law laid
down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), 40%
addition is made towards future prospects. A multiplier of '13' has wrongly
been applied and hence as per the law laid down by the Hon'ble Supreme
Court in the case of Sarla Verma (supra), multiplier of '17' would be
applicable keeping in view the age of the deceased being 27 years at the time
of the accident. The amount awarded under the conventional heads and under
the head 'loss of consortium' is not as per the law laid down by the Hon'ble
Supreme Court in the cases of Pranay Sethi (supra), Magma General
Insurance Company Limited (supra) and N. Jayasree (supra) and hence the
claimant-appellants would be entitled to ₹18,000 (₹15,000 + 20% increase)
102-C FAO-932-2011 (O&M) -8-
towards loss of estate and ₹18,000 (₹15,000 + 20% increase) towards funeral
expenses and the claimant-appellants (mother and brothers of the deceased)
would also be entitled to ₹48,000 each (₹40,000 + 20% increase) towards loss
of consortium.
8. Accordingly, the reworked compensation is as under :
Sr. No. Heads Compensation Awarded
1. Monthly income ₹6,448
2. Annual income [₹6,448 x 12] = ₹77,376
3. Deduction 50% [₹77,376 - ₹38,688] = ₹38,688
4. Future prospectus 40% [₹38,688 + ₹15,476] = ₹54,164
5. Multiplier of '17' [₹54,164 x 17] = ₹9,20,788
6. Funeral expenses ₹18,000
7. Loss of estate ₹18,000
8. Loss of Consortium :
(i) Filial ₹1,44,000 (₹48,000 x 3)
(Total ₹1,44,000/-)
Total Compensation ₹11,00,788
9. The amount in excess of and over and above the amount awarded
by the Tribunal shall also attract interest @ 7.5% per annum from the date of
filing of the claim petition till the realization of the entire amount. The amount
shall be apportioned between the claimants as directed by the Tribunal.
10. In view of the above discussion, the present appeal is allowed
and the award passed by the Tribunal is modified accordingly. Pending
applications, if any, also stand disposed off.
25.10.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
