Nasib Kaur and Others vs Gurucharan Singh and Others

S.N. Kapoor, J.—Heard learned counsel for the appellants.

Ld. counsel for the appellants states that appellant No.7, Sube Singh, had expired and his legal representatives are already on record. Moreover, the deceased Sube Singh had already relinquished his claim in favor of appellant Nos. 2 to 6, his grandchildren and children of the deceased Amrik Singh. Ld. counsel submits that name of appellant No. 7 be deleted from the array of appellants. This prayer is allowed. Name of appellant No. 7 be deleted accordingly.

In this case, learned counsel for the appellants raised the following three points:

That the respondent No. 5/New India Assurance Company, the insurer of truck No. PUR-3641, was liable to pay the entire amount of compensation awarded by the Tribunal against it and that it was limited to Rs. 50,000/-.

That the accident has taken place on account of composite negligence of two truck drivers leading the death of deceased Amrik Singh and the appellants are entitled to claim compensation from either of them.

That the learned Tribunal had erred in deducting 15% amount on account of lumpsum payment.

That the appellants should have been given interest from the date of the application.

I have hearted learned counsel for the appellants, for I did not have the advantage of hearing learned counsel for the respondents.

In so far as the liability beyond the statutory liability of respondent No. 5/New India Assurance Co. is concerned, I feel that the submission of the learned counsel for the appellants cannot be accepted. It was admitted by respondent No. 5 that their liability was limited to statutory limits. The owner of the truck did not lead any evidence to prove that any extra premium was paid to enhance the liability of the insurance company. From the side of the appellants no notice was given to the insurance company to produce the policy or a copy thereof. Insofar as the statutory liability is concerned, it is undisputed. Whosoever pleads enhancement over and above the statutory liability was supposed to prove it. It could be the owner of the vehicle and it could be the appellants also. In case notice was given and respondent No. 5/New India Assurance Co. failed to produce the document, then an adverse inference for withholding the best piece of evidence might have been drawn against it to the effect that, had it been produced, it might have gone against them. In absence of such an exercise no inference can be drawn against the New India Assurance Co.

Insofar as the question of composite negligence is concerned, seeing the evidence it is true that the deceased cannot be blamed for any contributory negligence on his part. Here it is also true that the tortfeasors, the drivers etc., of the two vehicles are independent or separate. As such, in view of what Salmond & Heuston observed in their Law of Tort, 21st Edition at p. 421 "the person damnified might sue them one by one and recover from one alone or from such as he chose to execute judgment, against, provided that he did not recover more than the greatest sum awarded or, against any defendant, more than was awarded in the action against him". Learned counsel relies upon Rama Bai Vs. H.M. Kamath, 1986 (2) ACJ 561 and submits that as it is a case of composite negligence every vehicle would be liable to pay the entire amount of compensation. I think after going through the judgment, while it is not possible to agree with the learned Tribunal insofar as the question of contributory negligence is concerned, one cannot ignore the provisions of Section 110 B of the Old Act and Section 168 of the New 1988 Act which enjoin the claims Tribunal to make an award: (1) determining the amount of compensation which appears to just; (2) specifying the person or persons to whom compensation shall be paid; (3) specifying the amount which shall be paid by the insurer or owner or driver of the vehicle. Supposing the Tribunal does not specify contributions in between different persons liable, apart from the liability of the insurer, would it be possible to fix without deciding and apportioning the blameworthiness of the driver of the two vehicles? Once blameworthiness is settled, the Tribunal or this Court cannot force one of the driver and owner of either of the vehicles of pay more than what has been awarded. It would be unfair and inequitable also. Despite composite negligence, we cannot apply any rule of English Law which is inconsistent with the Indian Law on one hand and principles of equity and good conscience on the other. It does not appear reasonable to accept that the appellants have got every right to claim compensation from either of the parties beyond their responsibility and beyond the degrees of their negligence. Consequently, I reject this contention of the learned counsel for the appellants.

7.1 However, the submission regarding deduction on account of lumpsum payment @ 15%, I find that the submission made by learned counsel for the appellants are sound and are based on not one but numerous judgments. Ld. counsel for the appellants refers to a judgment of D.B. of this Court in Mohinder Kaur and Others Vs. Manphool Singh and Others, and judgment of D.B. of Karnataka High Court in Rama Bai Meenakshi Vs. H. Mukunda Kamath and others, 1986 (2) ACJ 561 . In Mohinder Kaur''s case (supra), the D.B. of this Court referred to a earlier D.B. judgment in Municipal Corporation of Delhi and Others Vs. Shanti Devi Dutt and Another, and observed in para 8 at p. 234 as under:

"the advantage of lump sum payment is neutralised by the rise in prices of the necessities of life. We agree and follow the Division Bench judgment. The deceased here would have earned at least five increments before his retirement. This rise would have also been reflected in the pension. We were told at the bar that there was a general revision of pay scales after the death of the deceased. There is phenomenal rise in prices since 1963.

7.2 Similarly, in Rama Bai''s case (supra), a Division Bench of Karnataka High Court took the view that since the increase in income and promotion of the claimant was not considered, Therefore we are not inclined to give any deduction as claimed by the counsel for the respondents. The Court also observed that the learned Tribunal committed error in deducting 20% on this count.

7.3 I think that since the learned Tribunal has not taken into consideration the future prospects of the deceased, the phenomenal price rise, consequential rise in the minimum wages etc., I feel that the learned Tribunal has committed an error in deducting 15% on account lumpsum payment and it has to be corrected.

Insofar as the question of interest is concerned, in Smt. Chameli Wati and Another Vs. Municipal Corporation of Delhi and Others, in similar situation interest was allowed @ 12% from the date of the application till payment. On this basis, learned counsel for the appellants submits that the appellants should be awarded interest on the amount of compensation @ 12% per annum till the date of payment. In view of this judgment, I feel that submission of learned counsel for the appellants cannot not be brushed aside. It is made clear that the insurance companies clear that the insurance companies are also liable to pay interest on the amount awarded against them. The award of the Tribunal is accordingly modified. Accordingly, the appellants are entitled to claim Rs. 1,15,000/- as compensation with interest @ 12% per annum from the date of the application till payment in the ratio of 60:40 from the drivers owners and insurers of Truk No. P.U.A. 2854 and P.U.R. 3641 respectively subject to the limit of the insurers being limited to Rs. 50,000/- and interest @ 12% thereon as aforesaid. The amount already paid shall be adjusted. The award of the Tribunal stands modified and appeal is disposed of accordingly.