Punjab-Haryana High Court
Manju Chopra 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 FAO-972-2011 (O&M)
Date of Decision : 25.10.2024
MANJU CHOPRA 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 of
of 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 the deceased i.e. Raj Kumar Chopra son of Likhmi
Chand Chopra along with Arun Jain son of Ram Avtar Jain, 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 a
Santro Car bearing Registration No.DL-3-CS-7980 after the closing ceremony
102 FAO-972-2011 (O&M) -2-
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 ₹3,000
2. Annual income [₹3,000 x 12] = ₹36,000
3. Deduction 1/3rd _ [₹36,000 - ₹12,000] = ₹24,000
4. Multiplier of '14' [₹24,000 x 14] = ₹3,36,000
5. Funeral expenses ₹5,000
6. Loss of estate ₹5,000
7. Medical expenses ₹1,46,016
8. Loss of consortium ₹10,000
9. Total Compensation ₹5,02,016
Interest @7.5% per annum
102 FAO-972-2011 (O&M) -3-
Further, claimant-appellant No.1, namely, Manju Chopra was
held entitled to the compensation to the tune of ₹1,57,605; claimant-appellant
No.2, namely, Kirti Jain was held entitled to ₹2,95,209 and claimant-appellant
No.3, namely, Bhanwari Devi was held entitled to ₹49,202. 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. The
learned counsel would further contend that though the deduction to the extent
of 1/3rd as well as multiplier of '14' was correctly applied by the Tribunal,
however, income of the deceased, namely, Raj Kumar Chopra has wrongly
been assessed as ₹3,000 per month. The learned counsel has referred to the
statement of PW-3, namely, Harsh Ranka, Clerk-cum-Receptionist, Jain
Vishaw Bharti, Ladnun to contend that the said witness had brought the salary
record of the deceased as per which the deceased was drawing a salary of
₹6,200 per month. The salary sheets for the period April 2005 to January 2006
were produced on the record as Ex.P-13/A to Ex.P-13/M. Further, Rahul
Kumar Jindal, who was Organizing Secretary of the Jain Swetamber 13 Panth
Maha Sabha, Punjab, had stepped into the witness box as PW-4 to prove the
102 FAO-972-2011 (O&M) -4-
salary of the deceased as ₹5,000 per month. Receipts (Ex.P-17 to Ex.P-26)
were produced on the record. The learned counsel would further contend that
the gross salary from both the institutions was ₹11,200 per month which stood
duly proved. The learned counsel has further contended that no addition has
been made towards future prospects which should have been 25% and that the
amount awarded under the conventional heads as well as under the head loss
of consortium is on the lower side. Learned counsel would further contend
that an amount of ₹1,46,016 was incurred by the claimant-appellants on
account of medical expenses. In support of his contentions, he has relied upon
the judgments of the Hon'ble Supreme Court in the cases of National
Insurance Company Ltd. vs. Pranay Sethi & Ors. [(2017) 16 SCC 680],
Magma General Insurance Company Limited vs. Nanu Ram alias
Chuhru Ram & Ors. [(2018) 18 SCC 130] and N. Jayasree & Ors. vs.
Cholamandalam M.S General Insurance Company Ltd. [2021(4) RCR
(Civil) 642].
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). However, qua the income of the deceased the
learned counsel has vehemently contended that there was more than 50%
increase in the salary from September to October. It is further the contention
of the learned counsel that the deceased, who is stated to have been earning
₹11,200 per month cumulatively from both the organizations, was admittedly
not filing his income tax returns and no account statement of the deceased was
produced. It is further the contention that the amounts which are stated to have
102 FAO-972-2011 (O&M) -5-
been paid in cash could not have been paid in cash and that too without
deduction of TDS. The learned counsel would further contend that the
qualification of the deceased was not proved on the record. It is further the
contention of the learned counsel that the deceased could possibly not have
been working in two different organizations at the same time.
5. Heard.
6. In the present case 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
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
102 FAO-972-2011 (O&M) -6-
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
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
102 FAO-972-2011 (O&M) -7-
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
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
102 FAO-972-2011 (O&M) -8-
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. Qua the income of the deceased, the learned counsel for the
claimant-appellants has relied upon the statement of PW-3, namely, Harsh
Ranka, Clerk-cum-Receptionist Jain, Vishaw Bharti, Ladnun who had
brought the record from Jain Vishaw Bharti, Ladnun showing the salary being
paid to the deceased. A perusal of the statement and the cross-examination of
PW-3 reveals that no suggestion was put to the said witness that the deceased
who is stated to be working as an accountant could not work in two
organizations simultaneously. In view thereof, the argument of the learned
counsel for respondent No.4-Insurance Company that the deceased could not
have worked in two organizations simultaneously is rejected. The argument
of the learned counsel for respondent No.4-Insurance Company regarding the
exponential increase in the salary and hence the salary register could not have
been relied upon, also deserves to be rejected. Qua the salary being received
by the deceased from Jain Vishaw Bharti, Ladnun, Ex.P-13/A to Ex.P-13/M
were produced on the record. A perusal of the same reveals that the said are
extracts from a register and the name of the deceased figures at Sr. No.1. It is
hard to believe that the same could be a forged document inasmuch as neither
there is any overwriting nor has the entry been made in between or at the end,
102 FAO-972-2011 (O&M) -9-
rather the name of the deceased is reflected at Sr. No.1, hence, there is no
reason to doubt either the statement of PW-3 or the extracts from the register.
PW-4, namely, Rahul Kumar Jindal, Organizing Secretary of the Jain
Swetamber 13 Panth Maha Sabha, Punjab had stepped into the witness box
and placed on the record Ex.P-17 to Ex.P-26 which were the receipts showing
the payment to the deceased. No evidence has been brought on the record by
the respondents to show that the receipts were forged and fabricated. Once the
receipts and the extracts from the register were produced by the claimant-
appellants, the onus shifted on the respondents to show that the said
documents could not have been relied upon being forged and fabricated. In
the absence of any such evidence having been led, there is no reason to
disbelieve the said documents. In view thereof, the salary of the deceased is
assessed as ₹11,200 per month. Further, 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), 25% addition is made towards
future prospects. The deduction of 1/3rd as well as the multiplier of '14' have
rightly been applied. 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) towards loss of estate and ₹18,000 (₹15,000 + 20% increase)
towards funeral expenses and the claimant-appellants (wife, daughter and
mother of the deceased) would also be entitled to ₹48,000 each (₹40,000 +
102 FAO-972-2011 (O&M) -10-
20% increase) towards loss of consortium. There is no dispute so far as the
medical expenses incurred by the claimant-appellants are concerned and so
awarded by the Tribunal. Accordingly, the same are maintained i.e. ₹1,46,016.
8. Learned counsel for the parties are ad idem that the amount
towards income tax would have to be deducted. Accordingly, an amount of
₹4,000 is deducted towards income tax.
9. Accordingly, the reworked compensation is as under :
Sr. No. Heads Compensation Awarded
1. Monthly income ₹11,200
2. Annual income [₹11,200 x 12] = ₹1,34,400
3. Less income tax [₹1,34,400 - ₹4,000] = ₹1,30,400
4. Deduction 1/3rd [₹1,30,400 - ₹43,467] = ₹86,933
5. Future prospects @ 25% [₹86,933 + ₹21,733] = ₹1,08,666
6. Multiplier '14' [₹1,08,666 x 14] = 15,21,324
7. Loss of estate [₹15,000 + 20% increase] = ₹18,000
8. Funeral expenses [₹15,000 + 20% increase] = ₹18,000
9. Loss of Consortium :
(i) Parental ₹48,000
(ii) Filial ₹48,000
(iii) Spousal's ₹48,000
[Total ₹1,44,000]
10. Medical expenses ₹1,46,016
Total Compensation ₹ 18,47,340
10. 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.
11. In view of the above discussion, the present appeal is allowed
102 FAO-972-2011 (O&M) -11-
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
