Debaki Sahu and Others vs Administrator, Sri Jagannath Temple and Others

P.K. Misra, J.—The claimants have filed this appeal claiming higher compensation. The appellants are the widow, minor children and mother of deceased Batakrushna Sahu. The deceased was travelling in a Trekker bearing registration number OSU-8428 belonging to present respondent No. 2. While the Trekker was proceeding from Bhadrak towards Chhatia, the Bus bearing registration number OSP-1843 belonging to respondent No. 1 came from opposite direction and dashed against the Trekker, as a result of which the Trekker was dragged to a considerable distance. The deceased died on account of the impact. Application was filed claiming compensation of rupees three lakhs.

The owner of the Trekker did not contest the proceeding. The owner of the Bus filed written statement claiming that the accident occurred due to negligence of the driver of the Trekker. The two Insurance Companies of the two vehicles filed written statements denying in general the allegations.

The Claims Tribunal found that the accident was caused due to negligence of the drivers of both the vehicles. It assessed a sum of Rs. 92,000/- as compensation and directed that Rs. 46,000/- should be paid by the Insurer of the Bus, that is to say, present respondent No. 3, and Rs. 46,000/- should be paid by the owner of the Trekker, the present respondent No. 2, on the footing that passengers were not to be carried for hire in the Trekker.

In this appeal, it is contended by the counsel for the claimant- appellants that award of a sum of Rs. 92,000/- on the death of the sole bread winner of the family appears to be grossly low. Though the widow of the deceased claimed that the deceased was earning Rs. 2,500/- per month, the Tribunal has assessed Rs. 1,000/- to be the monthly income and thereafter assessed Rs. 600/- as the contribution to the family consisting of the widow, the widowed mother and the two children. Though the deceased was aged 30 years, the Tribunal applied the multiplier of 12 and adding a sum of Rs. 5,000/- towards loss of consortium awarded total sum of Rs. 92,000/-. Even assuming that the income of the deceased was only Rs. 1,000/- and not more as claimed by the claimants, keeping in view the number of dependents, the monthly contribution to the family could not have been paid at Rs. 600/- per month. Even applying the unit system of calculation, it can be safely concluded that the minimum contribution to the family would be Rs. 750/- per month. The deceased was aged about 30 years. Keeping in view the principle circulated by the National Legal Services Authority, multiplier of 16 can be taken to be appropriate. So calculated, the amount comes to Rs. 1,44,000/-. Apart from loss of consortium, the Tribunal was also required to pay certain amount towards funeral expenses and loss of estate. Having regard to the facts and circumstances of the case, taking a conservative view of the matter, it can be said that compensation of Rs. 1,60,000/- would be just and proper.

The Tribunal found that the accident occurred due to composite negligence of both the drivers. Once it was found that there was composite negligence, there was no necessity of directing that fifty per cent of the amount would be recoverable from respondent No. 2 and fifty per cent would be recoverable from Respondent No. 3. Law is now well settled that in case of composite negligence, the claimants are entitled to recover the amount from all the tort feasors either jointly or severally. Thus, the claimants have the option of recovering the entire awarded sum of Rs. 1,60,000/- from the Insurer of Respondent No. 1. Of course, if the entire amount is recovered from the Insurer of Respondent No. 1, it would be open to the Insurer (present lespondent No. 3) to file appropriate application before the Tribunal for apportionment of inter se liability between Respondent No. 3 and Respondent No. 2, the owner of the Trekker. This view has already been expressed in connected Misc. Appeal No. 162 of 1994 (National Insurance Company Ltd. v. Indramani Dash and Ors.), decided on 5th August, 1999, arising out of the very same accident. In view of the observations made in the said decision as well as the observations made in the judgment in Misc. Appeal No. 143 of 1996 (Administrative Trust Board, Sarala Temple, Kanakpur v. Ava Dutta and Anr.), disposed of on 10.8.1999, relating to limit of liability of Insurance Company, and in view of the provisions contained in Section 147 of the Motor Vehicles Act, 1988, it must be taken that the liability of the Insurance Company is unlimited. The observation of the Claims Tribunal that the Insurer of the Trekker is not liable to pay any amount is confirmed in view of the discussions already made in Misc. Appeal No. 162 of 1994 (supra).

Subject to the aforesaid observations and directions, the Misc. Appeal is allowed. There will be no order as to costs. The enhanced amount, if not deposited by 31st of March, 2000, shall carry interest at the rate of Twelve per cent thereafter.