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Judgment
The claimants aggrieved by the refusal of the Tribunal to grant compensation claimed for the death of the deceased, who is the husband of the 1st claimant and father of the 2nd claimant vide judgment in O.P.No.2532 of 2008 dated 11.10.2010 passed by the Motor Accidents Claims Tribunal-cum-XIII Additional Chief Judge (Fast Track Court) City Civil Court, Hyderabad filed the present appeal.
For the sake of convenience, the parties herein after will be referred to as arrayed in the Original Petition.
The case of the claimants is that the deceased was working as driver of the lorry bearing No. AP 28 W 3828. Additional driver was also on duty in the said lorry. While the deceased was going in the said lorry on 10.08.2006 at 3.30 a.m, the driver dashed against the lorry which was parked on the road bearing No. AP 37T 4057. On account of the collision with the stationed lorry, deceased died.
The claim petition was filed against the insurer of the stationed lorry which is AP 37T 4057.
Learned Tribunal having considered the evidence on record found that the claimants made only the insurer and owner of the vehicle bearing No.AP 37T 4057 as 1st respondent and not made the owner of the lorry bearing No.AP 28W 3828 in which the deceased was traveling. In the charge sheet filed, the driver of the lorry in which the deceased was traveling was shown as accused.
For the reason of non-joinder of the parties, i.e., insurer of lorry in which the deceased was traveling is fatal and accordingly, dismissed the claim petition.
Learned counsel appearing for the appellants would submit that in such cases, the appellants are at liberty to claim compensation from either of the vehicles. The said ratio was laid down in the judgment of the Hon’ble Supreme Court in the case of Kheyei v. New India Assurance Company Limited and others (2015) 9 SCC 273.
The trial Judge committed error in not granting compensation though the accident was admitted but only for the reason of not making the lorry in which the deceased was traveling as a party.
On the other hand, learned counsel appearing on behalf of the insurance company supported the findings of the trial Judge.
The Hon’ble Three Judge Bench of the Hon’ble Supreme Court in Kheyei’s case (supra) held as follows:
“17. The question also arises as to the remedies available to one of the joint tortfeasors from whom compensation has been recovered. When the other joint tortfeasor has not been impleaded, obviously question of negligence of non- impleaded driver could not be decided. Apportionment of composite negligence cannot be made in the absence of impleadment of joint tortfeasor. Thus, it would be open to the impleaded joint tortfeasors after making payment of compensation, so as to sue the other joint tortfeasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tortfeasors are before the court/Tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tortfeasor can recover the amount so determined from the other joint tortfeasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.
22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.”
In view of the observation of the Hon’ble Supreme Court that the claimant is entitled to sue both or any one of the tortfeasors to recover the entire compensation as liability, the finding of the Tribunal that not making the insurer of the lorry in which deceased was traveling as a party is hereby set aside.
Learned counsel for the claimants submit that the deceased was working as driver and used to draw salary of Rs.4,000/-per month. This Court, deems it appropriate to consider the income of the deceased at Rs.4,000/- per month. In view of the law laid down by the Honourable Supreme Court in National Insurance Company Limited v. Pranay Sethi and others (2017) 16 SCC 680 case, future prospects @ 40% of the income of the deceased has to be added which comes to Rs.1,600/- per month. Then the total income of the deceased per month is Rs.5,600/-.(Rs.4,000/- + 1,600/-). The annual income of the deceased comes to Rs.67,200/-p.a. (5,600 x 12). Since the dependents are 2 members, 1/3rd of the income i.e. Rs.22,400/-(67,200x1/3) has to be deducted towards personal expenses which comes to Rs.44,800/-p.a.(67,200-22,400). As per the Judgment of Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 the relevant multiplier for the age group of 36-40 is ‘16’ and then the loss of income due to the death of the deceased comes to Rs.7,16,800/- (44,800 x 16).
As per the decision of the Constitutional Bench of Apex court in case of Pranay Sethi’s case, the conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively and the same should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10%. Then the total consortium comes to Rs.96,800/- (Rs.40,000/- + Rs.40,000/- = Rs.80,000/-+ 10% for every three years) and Loss of Estate and funeral expenses comes to Rs.36,300/- (15,000 + 15,000 + Add 10% for every three years).
In all claimants are entitled to a total amount of compensation of Rs.8,49,900/-( 7,16,800+96,800 + 36,300).
Accordingly, Appeal is allowed and the claimants are entitled to compensation of Rs.8,49,900 with interest @ 7.5% from the date of petition till realization payable by respondents 1 and 2 in the OP. The claimants have to pay the deficit Court fee or the Tribunal may deduct the amount required for the purpose of Court fee from the amount awarded to the claimants after respondents Insurance Company deposits the amount. Both the claimants are entitled to equal share out of the compensation amount and they are at liberty to withdraw the same as and when deposited, without furnishing any security. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending in this appeal shall stand closed.