Anita and Others vs Irappa and Others

Ram Mohan Reddy, J.

Claimants in MVC No. 226/2009 on the file of the Prl. Senior Civil Judge and MACT, Gulbarga, (for short ''MACT''), dissatisfied with the findings fastening liability to the extent of 50% on the insurer of the offending motor vehicle and quantum of compensation by the judgment and award dated 20.11.2012, have presented this appeal.

In the accident that occurred on 14.07.2008 at about 11.45 pm involving Tata Safari jeep bearing certificate of registration KA-32/M-7789 and Ashoka Leyland lorry bearing certificate of registration KA-01/A-5700, due to which, one Prakash Vishwakarma, an inmate of the Tata Safari jeep succumbed to grievous injuries, led to filing a claim petition under Section 166 of the Motor Vehicles Act (for short ''Act'') registered as MVC No. 226/2009 before the MACT. Claimants being none other than the young widow aged 26 and two minor children aged 7 and 4, being female and male respectively, along with aged parents, sought compensation on the premise that the Ashoka Leyland lorry driven in a rash and negligent manner from opposite direction dashed against the Tata Safari jeep, head on, whence, the deceased aged 40, holder of a degree in Bachelor of Engineering (Electrical) earning Rs. 35,000/- per month engaged as a Supervising Engineer, Electrical Consultant Engineer and Agricultural Supervisor with Manik Pawar, a Railway Class I Contractor, the only son of parents, were depending on his income.

Before the MACT, insurer of the offending lorry resisted the claim by filing statement of objections, inter-alia, advancing the plea that although it was the rash and negligent driving by the driver of Tata Safari jeep which occasioned the accident, nevertheless, a false complaint was registered against the driver of the lorry.

In the premise of pleadings of the parties, MACT framed as many as five issues. Claimants examined three witnesses, the father of the deceased as P.W.1; employer of the deceased as P.W.2; and another occupant of the jeep as P.W.3; and marked documents Exs. P.1 to 11, while for the respondents, the Legal Officer of the Insurer was examined as RW-1 and the Investigating Officers as R.W-2 and R.W-3 and marked documents Exs. R-1 to R-7.

The MACT, having considered the material on record and evidence, both oral and documentary, observed that on 14.07.2008 at about 11.45 pm, deceased Prakash along with his friends was travelling in Tata Safari jeep driven by one Dr. Sidram Reddy, from Raichur to Gulbarga and near Geetanjali Factory on Jewargi-Gulbarga road, the driver of the Ashoka Leyland lorry came in the opposite direction from Gulbarga and dashed against the jeep, whence the accident occurred. P.W.1/father of the deceased introduced in evidence the certified copy of the FIR with complaint, charge sheet, spot panchanama, IMV report and PM report, marked as Exs. P.1 to P. 5. The Investigating Officers, R.W.2 and R.W.3 stated that accident occurred due to the rash and negligent driving by the driver of the Tata Safari jeep and that lorry was proceeding from Gulbarga to Raichur on left side of the road and it was the driver of Tata Safari jeep who was responsible for the accident.

The MACT having considered and reconsidered the entire pleading and evidence in great elaboration, held that the accident was due to contributory negligence of drivers of both the vehicles and accordingly, apportioned negligence in the ratio of 50:50.

As regards compensation towards loss of dependency, MACT declined to accept the degree of Bachelor of Engineer (Electrical) of the deceased Prakash, as also the salary of Rs. 35,000/- per month, nevertheless, reckoned Rs. 10,000/- as monthly income of the deceased and since he had left behind 5 dependents, deducted 1/4th towards his personal expenses to arrive at Rs. 7,500/- as monthly loss of dependency and regard being had to age 40 of the deceased, applied multiplier 15 to the annual loss to award Rs. 13,50,000/- towards loss of dependency. MACT awarded Rs. 15,000/- each towards loss of consortium and towards loss of love and affection and Rs. 10,000/- each towards loss to estate and funeral expenses, totaling to Rs. 14,00,000/-, by the judgment and award impugned.

The MACT, in our opinion, fell in serious error in fastening liability over the insurer of the offending lorry to the extent of 50% of compensation.

In case of composite negligence, when the deceased was not the tortfeasor and claim for compensation is filed against one of the tortfeasors, the Apex Court in Khenyei v. New India Assurance Company Limited and others , (2015)9 SCC 273 observed that in the case of composite negligence of joint tortfeasors the liability is joint and several and claimant is entitled to sue any of the joint tortfeasors or all of them to recover compensation and extent of liability of each of them separately is neither required to be established nor to be determined by the Court/Tribunal for the purpose of payment of compensation. In other words, it was held that even if only one of the joint tortfeasors (insurer of one of the two vehicles involved in the accident) is impleaded by the claimant, would be obliged to make full payment of compensation and non-impleadment of other joint tortfeasors is not a defence to reduce the compensation payable to the claimant.

Applying the aforesaid observation to the facts of this case, it is needless to state that MACT was not justified in fastening liability to the extent of 50% for the purpose of payment of compensation to the appellant. The finding to that extent calls for interference. The insurer of the lorry is directed to make good the compensation payable to the appellants.

There is force in the submission of the learned counsel for appellants that the MACT was not justified in reckoning Rs. 10,000/- as monthly income of the deceased. Ex. P.6 marks card of the deceased discloses that he was a holder of a degree in bachelor of Engineering (Electrical) having passed the course in the year 1999. Ex. P.9 is the record of rights relating to lands which stand in the name of P.W.1/father of the deceased. The accident occurred on 14.07.2008 by which time the deceased had 10 years experience as an Engineer. It is no doubt true that except for the oral testimony of P.W.2 who claims to be a Class I Railway contractor having employed the deceased, there is no material worth the while to establish the said facts. If regard is had to two relevant facts that the deceased was an Electrical Engineer and was also the only son to his parents who owned 6 acres 13 guntas of land in Sy. No. 108/1 of Jawali (D), Taluk Aland, Gulbarga District, within 30 kms from the city of Gulbarga, on which two crops could be grown in a year, it is reasonable to reckon Rs. 13,000/- as the monthly earning of the deceased from his profession as an Engineer and Rs. 2,000/- for loss of supervision charges, totaling to Rs. 15,000/-. In the light of the fact that deceased left behind a young widow and two minor children and parents were dependent on the deceased, MACT was fully justified in deducting 1/4th towards personal expenses of the deceased. The age of the deceased as shown in the post mortem report/Ex. P. 5 is 40 and applicable multiplier is 15. Reckoning Rs. 15,000/- as monthly income, deducting 1/4th, the monthly loss of dependency is Rs. 11,250/- and the annual loss is Rs. 1,35,000/- and applying multiplier 15, total loss of dependency is Rs. 20,25,000/-, as against Rs. 13,50,000/-, awarded by the MACT. Appellants are entitled to the balance of Rs. 6,75,000/- towards loss of dependency.

A meagre sum of Rs. 15,000/- is awarded by the MACT towards loss of consortium to a young widow aged 26. In the light of the decision of the Apex Court in Munna Lal Jain and another v. Vipin Kumar Sharma and others , (2015)6 SCC 347, the widow is entitled to Rs. 85,000/- in addition to Rs. 15,000/- awarded by the MACT. So also, the two minor children aged 7 and 4 being female and male, left behind by the deceased have lost care, affection and guidance of their father entitling them to Rs. 1,00,000/- each as against Rs. 15,000/- awarded by the Tribunal. Award of Rs. 10,000/- towards funeral expenses is on the lower side, hence appellants are entitled to additional sum of Rs. 15,000/- under the said head. The award of Rs. 10,000/- towards loss of estate, we think it appropriate not to interfere.

In the circumstances, appellants are entitled to Rs. 9,60,000/- with interest at 6% per annum, in addition to what is awarded by the MACT.

In the result, the appeal is allowed in part. The judgment and award impugned is modified fastening liability to pay compensation on the insurer of the offending lorry with liberty to recover 50% of the same from the insurer or owner of the Tata Safari jeep and to pay Rs. 9,60,000/- with interest at 6% and in all other respects, remains unaltered. Insurer to deposit the amount before MACT concerned within five weeks.