Smt. Lata Bai and Others vs Dhanesh Kumar Sahu and Others

Rajeev Gupta, C.J.—This is claimants'' appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari, (for short ''the Tribunal'') vide award dated 18.08.2009, passed in Claim Case No. 163/2008. As against the compensation of Rs. 34,50,000/- claimed by the appellants/claimants, unfortunate widow and children of deceased Chabiram Gound, by filing a claim petition u/s 166 of the Motor Vehicles Act, for his death in the motor accident on 25.04.2008, the Tribunal awarded a total sum of Rs. 91,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.

The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Chabiram Gound died on account of the injuries sustained by him in the motor accident on 25.04.2008; the accident occurred due to the negligence of motorcyclist Sastam La., who was driving the motorcycle bearing registration No. C.G. 05-B/1836 and the driver of the other vehicle Mahindra Maxx bearing Registration No. O.R. 24/G-3117; the negligence of the motorcyclist and the driver of the other vehicle Mahindra Maxx was to the extent of 50% each; as the above Mahindra Maxx on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimants.

The Tribunal assessed the income of the deceased at Rs. 15,000/- per annum. By deducting 1/3rd of Rs. 15,000/- towards the personal expenses of the deceased, the claimants'' dependency was assessed at Rs. 10,000/- per annum. By multiplying the annual dependency of Rs. 10,000/- with the multiplier of 16, the compensation was worked out to Rs. 1,60,000/-. By awarding further sum of Rs. 22,000/- under other heads, the Tribunal assessed the total compensation at Rs. 1,82,000/-. As the driver of Mahindra Maxx was held responsible for the accident to the extent of 50% only, the insurer of the Mahindra Maxx was directed to pay 50% of Rs. 1,82,000/- i.e. Rs. 91,000/- as compensation to the claimants for the death of deceased Chabiram Gound in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs. 91,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.

Shri J.A. Lohani, learned counsel for the appellants submitted that the Tribunal has erred in assessing the income of the deceased at Rs. 15,000/- per annum only; in deducting 50% of the compensation assessed on account of the finding of ''Contributory Negligence'' as the present case would be of ''Composite Negligence'' and as such the claimants are entitled to claim the entire amount of compensation from the insurer, driver and owner of the other vehicle Mahindra Maxx.

Shri A.K. Athaley, learned counsel for respondent No. 3, the Oriental Insurance Company Limited, on the other hand, supported the award and contended that the compensation of Rs. 91,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.

Shri Sanjeev Sahu, learned counsel for respondents No. 1 Dhanesh Kumar Sahu and No. 2 Prashant Kumar Panigrahi, the driver and owner of the offending vehicle Mahindra Maxx, also supported the award.

So far as the deduction of 50% of the compensation assessed by the Tribunal on account of the finding of ''Contributory Negligence'' is concerned, the same cannot be legally sustained in view of the dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others,

Admittedly, deceased Chabiram Gound was not driving any of the two vehicles involved in the accident. In fact, he was a pillion-rider on the motorcycle which was being driven by Sastam Lai at the time of the accident and the other vehicle Mahindra Maxx was being driven by respondent No. 1 Dhanesh Kumar Sahu.

The Apex Court while outlining the distinction between the cases of ''Contributory Negligence'' and ''Composite Negligence'' in the case of T.O. Anthony Vs. Karvarnan and Others, , observed in paras 6 and 7:

"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 of 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, 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 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 contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed in correct the said error.

As such, the present would be a case of ''Composite Negligence'' and not of ''Contributory Negligence'' as held by the Tribunal. The deduction of 50% of the compensation assessed by the Tribunal on account of the finding of ''Contributory Negligence'' therefore, is liable to be set aside.

In view of the above quoted dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (Supra), the claimants have the choice to claim the entire amount of compensation from any of the two tort feasors. As in the present case, the claimants have opted to claim the entire amount of compensation from the insurer, owner and driver of the Mahindra Maxx, in view of the above quoted dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (Supra), the insurer, owner and driver of the Mahindra Maxx are liable to pay the entire amount of compensation to the claimants.

Now we shall examine as to whether the compensation of Rs. 1,82,000/- assessed by the Tribunal is just and proper compensation in the facts and circumstances of the present case.

True, the claimants pleaded that deceased Chabiram Gound used to earn Rs. 200/- per day and Rs. 6,000/- per month as Mason, no cogent and reliable evidence was led before the Tribunal for establishing the above occupation of the deceased and his income to the extent of Rs. 6,000/- per month. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants'' evidence about the income of the deceased.

Nevertheless, the income of the deceased assessed by the Tribunal at Rs. 15,000/- per annum in the year 2008 is certainly on the lower side and requires reconsideration.

Deceased Chabiram Gound was shown to be 36 years of age in his postmortem report. In our opinion, he could have easily earned Rs. 70-75/- per day even by working as an unskilled labour, in the year 2008. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 2,000/- per month and Rs. 24,000/- per annum.

By deducting the usual 1/3rd of Rs. 24,000/- towards the personal expenses of the deceased, the claimants'' dependency is assessed at Rs. 16,000/- per annum.

The dictum of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, prescribes multiplier of 15 for the age group between 36-40 years. In our opinion, multiplier of 15, therefore, would be appropriate in the present case as deceased Chabiram Gound was shown to be 36 years of age in his postmortem report.

By multiplying the annual dependency of Rs. 16,000/- with the multiplier of 15 the compensation works out to Rs. 2,40,000/-. The claimants are further entitled to receive Rs. 5,000/- towards funeral expenses; Rs. 5,000/- for loss of estate; and Rs. 5,000/- for loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs. 2,55,000/- as compensation for the death of deceased Chabiram Gound in the motor accident.

Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties before the Tribunal about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.

Considering all the relevant aspects of the matter including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs. 1,64,000/- at Rs. 16,000/-.

For the foregoing reasons, the appeal filed by the appellants/claimants is allowed in part. By setting aside the deduction of 50% made by the Tribunal on account of the ''Contributory Negligence'' vis-a-vis deceased Chabiram Gound, the compensation of Rs. 1,82,000/- assessed by the Tribunal and Rs. 91,000/- awarded to the claimants is enhanced to Rs. 2,55,000/- with further quantified amount of interest of Rs. 16,000/- on the enhanced amount of compensation of Rs. 1,64,000/-.

Respondent No. 3 the Oriental Insurance Company Limited is granted three months'' time for depositing the total sum of Rs. 1,80,000/- (Rs. 1,64,000/- towards enhanced amount of compensation + Rs. 16,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs. 1,64,000/-) before the concerning Claims Tribunal. No order as to costs.