Prakash Mehtar vs Gangabai and Others

N.K. Mody, J.—Being aggrieved by inadequacy of the amount awarded vide award dated 3.2.1998 passed by II MACT, Ratlam in Claim Case No. 5/96 wherein in a motor accident, one Basantilal died, respondent Nos. 1 to 4 filed the claim petition and learned Tribunal awarded a sum of Rs. 1,62,000 along with interest @ 12% per annum, the present appeal has been filed.

Short facts of the case are that on 15.11.1995, one Matador Tata 608 bearing Registration No. MP I4-B 8458 was going from Ratlam to Namli. This b Matador was being driven by respondent No. 5, owned by respondent No. 6 and insured with respondent No. 7, The another truck bearing No. MPE-1557 was going behind the Metador. This truck was being driven by appellant No. 1, owned by appellant No. 2 and was not insured. From the opposite direction, one truck bearing Registration No. PB 10C 9970 was coming which was driven by respondent No. 8, owned by respondent No. 9 and was insured with respondent No. 10. There was a culvert on the main road. One person namely, Basantilal was standing on the road side. Undisputedly, due to the acident, which took place by the Metador, Basantilal died on the spot. Thereafter, claim petition was filed by respondent Nos. 1 to 4 who are L.Rs. of deceased Basantilal in which owner, driver and Insurance Company of all the vehicles were impleaded. All the owner, driver and Insurance Companies contested the case.

Learned Tribunal framed the issues, recorded the evidence and held that Tata Metador bearing Registration No. MP-14B/8458 and the truck bearing Registration No. MPE-1557 were responsible for the acident and apportioned the liability between both of them. Learned Tribunal awarded a sum of Rs, 1,62,000 along with interest @ 12% per annum, brake-up of which is as under:

Rs. 1,56,000 towards loss of dependency Rs. 4,000 towards loss of consortium and estate Rs. 2,000 towards funeral expenses.

Being aggrieved by inadequacy of the amount awarded, respondent Nos. 1 to 4 submitted cross-objections wherein it is alleged that the amount awarded is on lower side. It is submitted that learned Tribunal has assessed the income of the deceased @ Rs. 13,200 and loss of dependency @ Rs. 9,600 per annum, which is on lower side. It is submitted that even in the case of notional income, the income ought to have been assessed @ Rs. 15,000 per annum while deceased was working as agriculturist. It is also submitted that multiplier of 16 has been wrongly applied. Looking to the age of the deceased, multiplier of 17 ought to have been applied. It is further submitted that no amount has been awarded towards loss of love and affection and the amount awarded towards loss of consortium is on lower side.

After taking into consideration all the evidence on record, it appears that the amount awarded is on lower side. The income of deceased ought to have been considered @ Rs. 15,000 per annum and loss of dependency @ Rs. 10,000 per annum. Similarly, the multiplier of 16 has wrongly been applied while as per second schedule of the Motor Vehicles Act, the multiplier of 17 ought to have been applied. a Respondent Nos. 1 to 4 are also entitled for compensation on account of loss of consortium and love and affection. Hence, respondent Nos. 1 to 4 are entitled for the following amount:

Rs. 1,70,000 towards loss of dependency Rs. 15,000 towards loss of love and affection Rs. 5,000 towards loss of consortium Rs. 3,000 towards loss of estate Rs. 2,000 towards funeral expenses.

Thus, respondent Nos. 1 to 4 are entitled for a total sum of Rs. 1,95,000 instead of Rs. 1,62,000. The enhanced amount of Rs. 33,000 shall carry interest @ 6% per annum.

Mr. Manish Jain, learned Counsel for appellants submit that learned Tribunal committed error in holding that Truck bearing No. MPE-1557 was equally responsible for the accident. From perusal of the site map which is Ex. P/5 it is evident that undisputedly deceased sustained injuries from the Tata Matador 608. It is also evident from the map that the truck of the appellant stopped before the culvert and truck which was coming from the other side crossed the culvert. It is submitted that in the circumstances, it can safely be said that it was the Matador which was being driven rashly and negligently and caused the death of Basantilal. It is also submitted that even if it is assumed that accident has taken place on account of rash and negligent driving on the part of drivers of both the vehicles, then in view of the law laid down by the Hon. Full Bench of this Court in the case of Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, , wherein it has been held that in the absence of any evidence enabl ing the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such case, joint tort-feasors will be jointly and severally liable to pay the compensation.

Learned Counsel submits that fault of truck No. MPE-1557 can at the most be that it was not maintaining the safe distance between the Tata Matador 608. It is submitted that Tata Matador was being driven rashly and negligently which caused accident of Basantilal and the vehicle fell down in a ditch.

Mr. S.V. Dandwate, learned Counsel for respondent Nos. 7 and 11 submits that learned Tribunal has rightly held that both the vehicles were equally negligent and has rightly apportioned the liability. It is also submitted that in the FIR, it is the appellant No. 1 against whom it is alleged that vehicle was being driven rashly and negligently. It is also submitted that criminal case has been filed against the appellant No. 1, therefore, no illegality has been committed by the learned Tribunal in apportioning the liability.

From perusal of facts, it is evident that undisputedly the accident took place and Basantilal died. It is also undisputed that due to dash of Tata Matador, Basantilal died. It is also not disputed that vehicle which was being driven by respondent No. 5 fell down in a ditch. It is also undisputed that truck bearing No. MPE-1557 was following the Tata Metador. As per the appellant, Tata Matador overtook the truck bearing No. MPE-1557. As per appel1ant No. 1 since there was a culvert, therefore, the truck was stopped so as to allow the another truck coming from opposite direction to pass the culvert.

Looking to the facts and circumstances of the case, it is not possible to determine the ratio of negligence of joint tort-feasors. In the circumstances, findings of the learned Tribunal whereby apportionment of liability has been made by the learned Tribunal, is set aside. Appellants and respondent Nos. 5 to 7 are jointly and severally liable to make payment of amount of compensation as mentioned hereinabove to respondent Nos. 1 to 4.

With the aforesaid modifications, the appeal stands disposed of. No order as to costs.