Anju Sharma vs Surender

Vijender Singh Malik, J.—This is an appeal brought by the claimants for enhancement of compensation. The claim petition brought by Smt. Anju "Sharma and others u/s 166 of the Motor Vehicles Act, 1988 (for short the Act'') has been allowed by learned Motor Accidents Claims Tribunal, Bhiwani, (for short ''the Tribunal'') vide award dated 4.10.2010 in a sum of Rs. 2,62,000. The claim petition had been brought for compensation on the death of Sanjay Sharma having occurred in a road side accident that took place on 28.5.2009. On 28.5.2009 at about 6.00 AM, a bus driven by Malkiat Singh bearing registration No. RJ-06PA-0610 near Shahabad at a moderate speed. The deceased Sanjay Sharma was with the bus as second driver. At that place, a truck-trolla bearing registration No. HR-46R-5762 was standing on the middle of the road without any indication. The driver of the bus noticed the truck trolla late and though he applied brakes but could not stop hitting the truck-trolla at its back. Sanjay Sharma suffered multiple injuries, on account of which he died. FIR was lodged on the statement of Ram Singh, a cleaner of the bus. A sum of Rs. 70,00,000/- is claimed as compensation.

The respondents denied the averments of the claimants. They have denied the accident to- have occurred in the aforesaid manner. They have dented the deceased to be earning Rs. 15000/- per month and have denied the claimants to be entitled to Rs. 70,00,000/- as compensation.

Learned Tribunal found the case to be one of contributory negligence where the responsibility for causing the accident was apportioned as 50:50. Learned Tribunal took the income of the deceased as Rs. 3500/- per month and Rs. 42,000/- per annum. Taking the case to be ones of the contributory negligence,'' he took into consideration 50% of his income arid applying deduction of 1/5th thereto found the annual dependency of the claimants at Rs. 16,800/-. Multiplier of 15 has been adopted in this case and he has assessed a sum of Rs. 2,52,000/- as the loss suffered by the claimants in the death of Sanjay Sharma. A sum of Rs. 10,000/- is assessed as compensation for loss of estate and thus, a sum of Rs. 2,62,000/- is awarded as compensation.

Learned counsel for the appellants has contended that it is a case of composite negligence. According to him, the deceased himself was not on the wheel and, therefore, it was not his negligence/contribution to the cause of the accident He has further submitted that in case of composite negligence, the claimants can enforce the entire award against any set of the respondents. He has further submitted that learned Tribunal has not assessed the income of the deceased properly. According to him, it is evident on the record that the deceased was a second driver of the bus and taking of his income at Rs. 3500/- per month is not proper.

Learned counsel for respondent No. 3, on the other hand, has submitted that the deduction should have been of 1/4th instead of 1/5th.

The bus involved in the accident has been driven by Malkiat Singh. The truck-trolla, which was found parked in the middle of the road in the early hours of the day, was driven by Surender. It is a case of composite negligence for the case brought on death of Sanjay Sharma, who was travelling in the bus in question as second driver thereof. In case of composite negligence, the compensation has not to be deducted and even the entire award can be enforced against one set of the respondents, who would have right in the event of payment of the entire award money, to recover 50% thereof from the other set of tort-feasors and insurer. The Tribunal was, therefore, not justified in deducting 50% of the amount from the income assessed by him of the deceased.

The deceased had been traveling in the bus. It is evident from the FIR that Sanjay Sharma was the second driver of the bus in question. If he was the second driver of the bus and the accident had taken place on 28.05.2009, the income of the deceased could not be taken at Rs. 3500/- per month. The income has to be taken at least at Rs. 5000/- per month. Since the number of claimants is six, 1/4th is the deduction to be effected therefrom in the name of the expenses of the deceased on himself. Making such deduction and multiplying the remainder with 12, I find the annual dependency of the claimants at Rs. 45000/-. Multiplying this annual dependency with 15, the multiplier as selected by the Tribunal, I find a sum of Rs. 6,75,000/- as the amount lost by the claimants in the death of Sanjay Sharma. Adding to it, a sum of Rs. 25,000/- as compensation under the conventional heads for loss of estate, loss of consortium and expenses on last rites, I assess a sum of Rs. 7,00,000/- as compensation in favour of the appellants. In the result, the appeal succeeds and is allowed enhancing the compensation from Rs. 2,62,000/- to Rs. 7,00,000/-. Since the negligence is composite, this award can be enforced against any set of the respondents i.e. Respondents No. 1 to 3 or 4 and 5 and when the amount is realized from one set of the respondents, that set of respondents can seek 50% of the amount from the other set of the respondents. The amount shall be payable with interest @ 6% per annum from the date of filing of the petition till the date of realization thereof. Out of this amount, a sum of Rs. 4,00,000/- would go to appellant No. 1 and the remaining amount shall be shared in equal by the other appellants.