AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal is filed by Cholamandalam M/S General Insurance Company Ltd. to challenge an award dated 06.10.2018 passed by Motor Accident claims Tribunal No.2, Gomati Judicial District, Udaipur in Case No. T.S. (MAC) 86 of 2014. This appeal is pressed on the ground of negligence of the driver of the vehicle insured by the appellant-insurance company as well as on quantum of compensation awarded by the Claims Tribunal.
On 11.03.2014 one Arun Kumar Dutta was travelling in an auto rickshaw along with two co-passengers when their vehicle collided with a truck coming from the opposite direction. The appellant is the insurer of the said truck involved in the accident. Arun Kumar Dutta received serious bodily injuries causing his death. His dependants i.e. his wife, son and aged mother filed above mentioned claim petition seeking compensation of Rs.26,50,000/- from the owner and insurer of the truck involved in the accident.
Before the Claims Tribunal, claimant No.1, widow of the deceased was examined as P.W.1. She stated that her husband was aged about 57 years on the date of accident. He was serving as an Assistant Teacher under the Education Department of State of Tripura and drawing a monthly salary of Rs.30,627/-. She was not an eye witness to the accident and therefore, her assertion that the accident took place on account of rash and negligent riding of the truck, would be of no use.
The claimants had also examined one Rajarshi Sen, who was a co-passenger with the deceased in the auto rickshaw when the accident took place as P.W.2. He stated that when their auto rickshaw was going towards Maharani Bridge, at about 4.15 in the evening near the market, the truck came from the opposite direction at abnormal speed. It was being driven rashly and negligently which caused the accident. Later on, he clarified that the accident occurred due to rash and negligent driving of both the vehicles.
On the basis of such evidence on record, the Claims Tribunal held that the accident occurred due to sole negligence of the driver of the truck. In relation to the quantum of compensation the Tribunal noted that the deceased was earning Rs.30,627/- per month. After deductions his salary came to Rs.29,919/-. The Tribunal granted 15% rise for future income, deducted one-third for the personal expenditure of the deceased, applied a multiplier of 9 and calculated the loss of dependency benefit at Rs.24,77,293/-. To this the Tribunal added a sum of Rs.15,000/-towards loss of estate and Rs.15,000/- for funeral expenses. A further sum of Rs.1,20,000/- was added by way of loss of consortium for three claimants @ Rs.40,000/- each. The Tribunal awarded a total compensation of Rs.26,27,293/- which would be payable by the insurer of the truck.
Appearing for the appellant-insurance company, Mr. Rajib Saha, learned counsel submitted that this was a case of composite negligence. The driver of the auto rickshaw was equally negligent in causing the accident. This was clearly stated by P.W.2 in his deposition. The Claims Tribunal in other injury cases arising out of the same accident had apportioned such liability equally between the drivers of the two vehicles.
In connection with the compensation, he submitted that the Claims Tribunal did not make any deduction for the income tax payable by the deceased and further awarded consortium separately to three members of the family which was not permissible.
Learned counsel, Mr. P. Gautam for the respondent No.7-Oriental Insurance Company Limited, the insurer of the auto rickshaw opposed the contention of the counsel for the appellant-insurance company in connection with the negligence. He submitted that the deposition of P.W.2 was clear. Additionally, the investigating agency had filed the charge sheet against the driver of the truck. The Tribunal had correctly come to the conclusion that the driver of the truck was solely negligent in causing the accident.
Having thus, heard learned counsel for the parties, I may first deal with the question of negligence. Before that, it may be clarified that so far the claimants are concerned, this issue is of no consequence. The deceased was travelling in an auto rickshaw and therefore, even if it is a case of negligence of two drivers it would be a case of composite negligence and therefore, in so far as claimants are concerned the liability of the insurance companies would be joint and several.
The record would suggest that the accident took place in the month of March at about 4.15 p.m. There would thus be sufficient daylight. The accident occurred near the market place which would naturally be crowded. Drivers of both the vehicles had duty to drive the vehicles carefully and at moderate speed. It is a case of head on collision. Even P.W.2 had agreed that drivers of both vehicles were driving rashly and negligently. This was thus clearly not a case of sole negligence of the driver of the truck. However, being in-charge of a heavier vehicle he must share greater responsibility for causing the accident. I, therefore, hold that the driver of the truck was negligent to the extent of 70% and the driver of the auto rickshaw to the extent of 30% in causing the accident. The Claims Tribunal might have expressed a different opinion in connected claim petitions. However, these awards were not challenged before the High Court and I am entitled to take an independent view of the matter on the basis of evidence on record.
Coming to the question of compensation, the Tribunal has committed certain minor errors which need to be corrected. The salary certificate of the deceased immediately before the accident showed that his gross monthly pay was Rs.30,627/- out of which a deduction of Rs.208/- was made towards professional tax. This is the only deduction which can be taken to account for deciding the income of the deceased since neither festival advance nor his contribution towards general insurance can be stated to be in the nature of deductable payments. His salary would, therefore, be worked out at Rs.30,420/- (rounded off). Against this there would be income tax liability. Considering the income tax slabs prevailing for the assessment year 2015-16 as also the deductions permitted for investments such as provident fund etc. the annual tax liability can be worked out approximately at Rs.20,000/-. The yearly income after tax of the deceased thus would come to Rs.3,45,040/- (i.e. Rs.30,420/- x 12 = Rs.3,65,040/- - Rs.20,000/-). One-third of this would be deducted for the personal expenditure of the deceased which comes to Rs.1,15,013/-. The yearly dependency benefit would therefore be Rs.2,30,000/-(rounded off). Multiplier of 9 would be applied as per the decisions of Supreme Court in case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. The loss of dependency benefit would therefore worked out to Rs.20,70,270/-. To this would be added a sum of Rs.70,000/- under conventional heads as provided by Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680. The total compensation payable to the claimants would come to Rs.21,40,270/- rounded off to Rs.21,40,300/-. The approach of the Tribunal to award consortium @ Rs.40,000/- per claimant is not approved. To begin with the term consortium includes compensating to a spouse for the loss of a partner and would not be available to other members of the family. In any case, the Supreme Court has in the case of Pranay Sethi (supra) standardized the pay outs for such conventional heads which takes into account loss of consortium as well as loss of love and affection for children.
The appeal is disposed of with reduction in the compensation payable to the claimants to Rs.21,40,300/-. The liability of paying such amount is joint and several on the owners and insurance companies of both the vehicles so far as claimants are concerned. However, for internal purposes the driver of the truck is held negligent to the extent of 70% and the driver of the auto rickshaw is held negligent to the extent of 30% in causing the accident.
Appeal disposed of accordingly. Pending application(s), if any, also stands disposed of.
Send down the lower Court records forthwith.