Puttathayamma and Others vs Purushothamachand Ranwat and Others

B. Sreenivas Gowda, J.—These appeals are by the claimants seeking enhancement of compensation awarded by the Tribunal.

As these two appeals are arising out of a common road traffic accident, with the consent of the learned counsel appearing for the parties, they are heard together, admitted and disposed of by this common judgment.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding death of two persons namely Kandedaiah and Muthuraju in a road traffic accident occurred on 29.05.2005 by involvement of a lorry and a bus, the points that arises for my consideration are:

"i) Whether the finding of the Tribunal on negligence holding that the accident has occurred due to contributory negligence of 60% on the part of the driver of the bus and 40% on the part of the driver of the lorry is sustainable in law?

ii) Whether claimants are entitled to recover entire compensation from any one of the tortfeasor in case of an accident occurred by involvement of more than one vehicle?

iii) Whether quantum of compensation awarded is just and reasonable or does it call for enhancement?"

Sri Shantaraju, learned counsel appearing for the claimants submits, in view of settled principles of law and judgment of this Court and of the Hon''ble Supreme Court, deceased persons being 3rd parties to the accident occurred by involvement of more than one vehicle, their legal heirs i.e. claimants are entitled to recover compensation from any of the solvent tortfeasor and therefore he prays the Court that the insurer of bus may be directed to pay entire compensation awarded by the Tribunal and the compensation to be awarded in the appeal with a right to the insurer of the said tortfeasor to recover it from the other tortfeasor. Regarding quantum he submits that the compensation awarded towards loss of dependency as well as conventional head is on the lower side. Therefore, he prays for allowing both the appeals as prayed for.

Sri M. Narayanappa and C.M. Poonacha learned counsel appearing for the insurer of bus in the respective appeals submit that the finding of the Tribunal on negligence holding that the accident has occurred due to contributory negligence of 60% on the part of driver of the bus and 40% on the part of driver of the lorry, is being rendered upon reconsideration of the case afresh after remand of the matter from this Court to the Tribunal and it is based on proper appreciation of entire oral and documentary evidence on record and therefore it may not be interfered with once again. They submit in the event of this Court directing the insurer of the bus to pay the entire compensation awarded by the Tribunal and enhanced compensation if any to be awarded in the appeal to the claimants, the insurer of bus may be reserved with a right to recover the said 40% of the compensation amount from the owner of the lorry. Regarding quantum they submit that the quantum of compensation which has already been awarded by the Tribunal is more than just entitlement and there is no scope for enhancement and therefore they pray for dismissal of both the appeals.

Regarding point No. 1:

Claimants have preferred these appeals challenging the judgment and award of the Tribunal both on the ground of negligence and quantum. Learned counsel for the claimants submits in view of latest judgment of the Hon''ble Supreme Court in the case of Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, wherein it is held that claimants are entitled to recover compensation from any one of the solvent tortfeasure, where accident occurred by involvement of more than one vehicle, he does not press the ground urged on negligence and seeks permission to confine the appeals regarding quantum only.

At the same time, the driver and the owner of lorry and the driver, owner and the insurer of bus have not preferred appeal challenging the judgment and awards passed by the Tribunal on any ground including it''s finding on negligence in holding that accident has taken place due to contributory negligence of the drivers of bus and lorry at the rate of 60% and 40% respectively. Under the above circumstance the appellants are permitted to restrict their appeal with regard to quantum only and point No. 1 is answered accordingly.

Regarding point No. 2:

It is settled principles of law that if a third party to a road traffic accident occurred by involvement of more than one vehicle sustained injury or died, the said injured person or legal heirs of such dead person is/are entitled to recover compensation from any one of the solvent tortfeasor and it is for the tortfeasor who will be made liable to make good the compensation to recover the amount from the other tortfeasor, as has been held by the several judgments of this Court and of the Hon''ble Supreme Court and particularly in the latest judgment of the Hon''ble Supreme Court in the case of Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, .

Admittedly deceased Kandedaiah and Muthuraju were traveling as passengers in the bus involved in the accident in question which was proceeding from Mysore towards Bangalore and accident has taken place near city greens of Bangalore-Mysore road within the jurisdiction of Ramanagaram Taluk and District and that they were 3rd parties to the accident, as such their legal heirs are entitled to recover compensation from the insurer of bus, and the insurer of bus will have the liberty to recover the compensation from the owner of lorry to the extent of negligence contributed by the driver of the lorry i.e. 40%. Point No. 2 is answered accordingly.

Point No. 3 regarding quantum:

MFA No. 6452/2011 (MVC No. 234/2005):

It is a case of death of one Kandedaiah. Claimants who are his wife and two daughters in support of their contention that deceased by doing agriculture, sericulture, dairy farming and vegetable vending was earning Rs. 6,000/- per month have examined second claimant one of the daughters of deceased as P.W. 1 and have produced RTC extract at Ex. P6, pass book issued by Milk Dairy and Sericulture Department pertaining to the deceased at Exs. P8 and P9 respectively. RTC extracts produced at Exs. P6 would show that there was 30 guntas of land standing in the name of deceased Kandandaiah and he was cultivating the same personally. Passbook issued by Milk Dairy at Ex. P8 would show that, immediately prior to his death in the accident, he was supplying milk to the extent of 9 to 10 liters per day. Ex. P9 passbook issued by Sericulture Department would show that he was growing sericulture. Therefore, considering the age of deceased was 45 years, year of accident as 2005 and his avocation as agriculturist, sericulturist and dairy farming, his income could be easily taken at Rs. 5,500/- per month as against Rs. 4,000/- taken by the tribunal. 1/3rd of his income deducted by the Tribunal towards his personal and living expenses and multiplier of 14 applied are just and proper. If so, loss of dependency would work out to Rs. 6,16,056/- (3667 x 12 x 14) and it is awarded as against Rs. 4,48,056/- awarded by the Tribunal. In addition to that, a sum of Rs. 25,000/- is awarded towards loss of consortium in respect of first claimant. Rs. 40,000/- is awarded towards love and affection at the rate of Rs. 20,000/- to each of the claimant and Rs. 20,000/- is awarded towards transportation of dead body and funeral expenses. In all, claimants are awarded compensation of Rs. 7,01,000/- as against Rs. 4,83,000/- awarded by the Tribunal. Thus, claimants are entitled to additional compensation of Rs. 2,18,000/- with interest at 6% per annum from the date of petition till realization.

In MFA No. 6451/2011:

MFA No. 6451/2011 is arising out of MVC No. 231/2005. It is a case of death of one S.R. Muthuraju. Claimants who are his wife and two minor children and aged father in support of their contention that deceased by working as Cashier in a Bar and Restaurant was earning Rs. 5,000/- per month. Except examining the first claimant wife of deceased as P.W. 1, have not adduced any other evidence regarding avocation and income of the deceased. In the absence of proof of income, considering his age as 35 years, year of accident as 2005 and avocation as a daily wager, his income is taken at Rs. 3,750/- per month. 1/4th of his income deducted by the Tribunal towards his personal expenses and multiplier of 16 applied are just and proper. So the loss of dependency works out to Rs. 5,40,000/- (3,750 x 1/4 x 12 x 16) and it is awarded.

In addition to that, a sum of Rs. 25,000/- is awarded towards loss of consortium in respect of the first claimant-wife. Rs. 60,000/- is awarded towards love and affection in respect of claimants 2, 3 and 4 at the rate of Rs. 20,000/- each and Rs. 20,000/- is awarded towards transportation of dead body and funeral expenses. In all, claimants are entitled for compensation of Rs. 6,45,000/- as against Rs. 4,67,000/- awarded by the Tribunal and they are entitled for an additional compensation of Rs. 1,78,000/- with interest at 6% per annum from the date of petition till realization.

Accordingly, the appeals are allowed in part. The judgment and awards of the Tribunal are modified. Claimants are entitled to additional compensation mentioned against their cases with interest at 6% p.a. from the date of claim petition till the date of realization.

The insurer of bus is directed to pay the compensation awarded by the tribunal and the additional compensation awarded by this Court with interest within two months from the date of receipt of a copy of judgment with a reight to recover 40% of the said amount from the owner of the lorry out of the same award by filing an execution petition.

The apportionment/deposit/release of money to the claimants will be in the ratio of the award of the Tribunal.

No order as to costs.