Paguntamma and Others vs Shivaraj and Others

H. Billappa, J.—This appeal by the appellants/claimants is directed against the judgment and award dated 20.06.2011 passed by the MACT, Raichur, in MVC No. 255/2010.

By the impugned judgment and award, the Tribunal has awarded compensation of Rs. 3,60,000/- wife interest @ 6% p.a. from the date of the petition till the date of payment. The liability is apportioned in the ratio of 50% between the respondents 1 to 3 and the respondents 4 and 5. Aggrieved by that, the appellants/claimants have filed this appeal.

Briefly stated the facts are; The appellants are the legal representatives of the deceased Jangleppa being wife and daughter. That on 25.02.2010, at about 7 p.m., the deceased and the appellant No. 1 were traveling from their village Irchad to Raichur in a jeep bearing Reg. No. KA-36/M-3488 belonging to the respondent No. 5 and driven by respondent No. 4. When the jeep reached Arsikara cross, a tractor bearing Reg. No. AP-22/J-6464 belonging to the respondent No. 2 and driven by the respondent No. 1 came from opposite direction in rash and negligent manner and dashed against the jeep in which the deceased was traveling As a result of that, the deceased sustained injuries and succumbed to the same. The appellants claimed compensation of Rs. 20 lakhs. The Tribunal has awarded a sum of Rs. 3,60,000/- with interest at 6% p.a. from the date of petition till the date of payment.. The liability has been apportioned between the respondents 1 to 3 and the respondents 4 and 5. Aggrieved by that, the appellants/claimants have Sled this appeal.

The learned counsel for the appellants contended that the Tribunal has erred in apportioning the liability between the respondents 1 to 3 and the respondents 4 and 5. The deceased was traveling in the jeep. He has not contributed anything for the accident. Therefore, it was a composite negligence. The drivers of both the vehicles were responsible for the accident. Therefore, the Tribunal has erred in apportioning the liability between the respondents 1 to 3 and the respondents 4 and 5. The Tribunal should have fastened fee liability on all the respondents to pay the compensation jointly and severally. He placed reliance on the decisions of the Hon''ble Supreme Court reported in Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, (2014) 1 ACC 386 : (2014) ACJ 704 : (2014) AIRSCW 1062 : (2014) 2 JT 381 : (2014) 2 RCR(Civil) 764 : (2014) 1 SCALE 760 : (2014) 3 SCC 590 : (2014) 4 SCJ 354 and Karnataka State Road Transport Corporation Vs. Arun alias Aravind, (2004) 2 ACC 53 : (2004) ACJ 249 : AIR 2004 Kar 149 : (2004) ILR (Kar) 26 : (2004) 1 KarLJ 338 : (2004) 1 KCCR 379 Further, he submitted that the Tribunal has taken the income of the deceased at Rs. 125/- per day which is not correct. The deceased was earning Rs. 200/- per day. Further, he submitted that the compensation awarded by the Tribunal towards conventional heads is also inadequate. Therefore, the impugned judgment and award needs to be modified.

As against this, the learned counsel for the respondent No. 3 submitted that in the event liability is fastened on the respondent No. 3, the respondent No. 3 may be permitted to recover the amount from the owner and driver of the jeep i.e., respondents 4 and 5. Insofar as the quantum is concerned, he submitted that the amount awarded by the Tribunal is just and proper and therefore, it does not call for interference.

We have carefully considered the submissions made by t he learned counsel for the parties.

The points that arise for our consideration are;

Whether the Tribunal was justified in apportioning the liability between the respondents 1 to 3 and respondents 4 and 5?

Whether the impugned judgment and award needs to be modified?

Point No. 1

8 Admittedly, the deceased Jangleppa was traveling in the jeep. The Tribunal has recorded a finding that the drivers of both the vehicles i.e., the jeep and the tractor have contributed for the accident equally. The deceased has not contributed anything for the accident. Therefore, it is the case of composite negligence. The Hon''ble Supreme Court in the case of Paivan Kumar and another Etc. v. M/s. Harkishan Dass Mohan Lal and others reported in 2004 (14) SCJ 354 has observed as follows at paras 6, 7 and 8:

The distinction between the principles of composite and contributory negligence has been dealt with in Winfield and Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:-

"WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that pedal rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiffs advantage to show that he has suffered the same, indivisible ham at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role.......................................................The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous....................."

Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiffs claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha and others (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted here in below:

"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 or 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, party due to the negligence on the part of another person or person, 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.

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 contributor 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 the present case, neither the driver/owner nor the insurer has filed any appeal or cross objection against the findings of the High Court that both the vehicles were responsible for the accident. In the absence of any challenge to the aforesaid part of the order of the High Court, we ought to proceed in the matter by accepting the said finding of the High Court. From the discussions that have preceded, it is clear that the High Court was not comet in apportioning the liability for the accident between drivers/owners of the two vehicles."

A similar view has taken by this Court in the case of Karnataka State Road Transport Corporation Vs. Arun alias Aravind, (2004) 2 ACC 53 : (2004) ACJ 249 : AIR 2004 Kar 149 : (2004) ILR (Kar) 26 : (2004) 1 KarLJ 338 : (2004) 1 KCCR 379 .

Therefore, it is clear, it was a case of composite negligence and not contributory negligence. The Tribunal has erred in apportioning the liability between the respondents 1 to 3 and respondents 4 and 5. The claimants can recover the entire compensation by any of the tortfeasors. Therefore, the Tribunal was not justified in apportioning the liability ''between the respondents 1 to 3 and respondents 4 and 5. The respondents 1 to 5 are jointly and severally liable to pay the compensation to the claimants. Therefore, We set aside the order of the Tribunal insofar as apportionment of the liability between the respondents 1 to 3 and the respondent 4 and 5 is concerned. We hold that the claimants can recover the entire compensation from the respondents 1 to 3 or respondents 4 and 5. Then liability is joint and several.

The Tribunal has awarded a sum of Rs. 3,30,000/- towards loss of dependency taking the income of the deceased at Rs. 3,750/- per month.

The learned counsel for the appellants and also the learned counsel for respondent No. 3 submitted that before the Lok Adalath in such cases, the income is taken at Rs. 5,500/- per month. Therefore, it is proper to take the income of the deceased at Rs. 5,500/- per month. If 1/3rd is deducted towards personal expenses of the deceased, the balance comes to Rs. 3,666/- and it is rounded off to Rs. 3,670/-. Therefore, the loss of dependency per month is Rs. 3,670/-. The deceased was aged 55 years at the time of accident. Therefore, the appropriate multiplier is 11. The compensation payable towards loss of dependency comes to Rs. 3,670/- x 12 x 11 = Rs. 4,84,440/-. Accordingly, a sum of Rs. 4,84,440/- is awarded towards loss of dependency.

The Tribunal has awarded a sum of Rs. 30,000/- towards conventional heads like funeral expenses, loss of estate, loss of consortium and loss of love and affection which is inadequate. We consider it proper to award additional amount of Rs. 50,000/- towards conventional heads.

The total compensation payable comes to Rs. 5,64,440/- and the breakup is as follows:

Accordingly, the appeal is allowed and the impugned judgment and award passed by the Tribunal in MVC No. 255/2010 stands modified granting compensation of Rs. 5,64,440/- instead of Rs. 3,60,000/- with interest @ 6% p.a. from the date of petition till the date of payment.

The respondents 1 to 3 and respondents 4 and 5 are jointly and severally liable to pay the compensation. Respondent No. 3 shall deposit the entire award amount within two months from today excluding the amount already deposited, if any. Respondent No. 3 can recover the amount from the other tortfeasors in accordance with law after satisfying the award.

The apportionment of enhanced compensation amongst the appellants/claimants shall be in the proportion as ordered by the Tribunal.