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Judgment
Subhasis Dasgupta, J
The impugned judgment and order dated 31st March, 2016, passed by Motor Accident Claims Tribunal 4th Court Jalpaiguri granting award to the tune of Rs.3,69,500/- with interest at the rate of 9% per annum from the date of filing claim application is the subject matter of appeal in this case.
Learned advocate for the appellant/insurance company submitted with all fairness that the appeal could be disposed of for a short point, based on law, having involved in this case, and in the interest of securing expeditious disposal, lower court records would not be necessary for our present purpose.
Learned advocate for the respondent earnestly submitted that since the point urged could be set at rest without resorting to any extensive hearing, the appeal could be taken up for hearing.
Upon perusal of the records we are of considered view that the points urged to be decided, both in this appeal and cross-objection, required to be addressed by us, may be conveniently decided without taking any assistance from the lower Court records, being basically on question of law.
The challenge raised basically concentrated to solitary point in this appeal was that Tribunal without apportioning the liability unilaterally granted the award asking appellant/insurance company to indemnify the respondents in a case, where the deceased victim suffered death in a road traffic accident, occurred by reason of head on collusion and thus the contributory negligence on the part of the other vehicle (recovery van) meeting head on collusion with the alleged offending truck could not be taken care of by the Tribunal.
The Tribunal Judge elaborately dealt with the factual circumstances in details while granting the award, but some crucial facts are of highest significance for the decision of this appeal. The deceased victim met with a road traffic accident on 8.3.12, when he was proceeding towards Fatapukur from Jalpaiguri by one recovery Van, and as soon as the deceased victim with his aforesaid Van reached Sariam Bazar under P.S. Rajganj, the offending truck bearing no. HR-46-B-2154 moving then from opposite direction dashed the recovery Van of the deceased victim in consequence of rash and negligent driving, and as a result of which deceased victim sustained serious injuries on his person. Subsequently he was removed to Rajganj P.H.C. and ultimately to North Bengal Medical College and Hospital, where the deceased victim succumbed to his injuries in hospital. At the time of accident deceased victim was 30 years old, and had earning to Rs.6500/- per month being an employee of 'Salvation Army', Himalayan Division, Fatapukur, Jalpaiguri. The respondents/claimants initiated the claim case being legal heirs and dependent family members of deceased for the loss they suffered due to sudden death of the deceased victim.
During the trial conducted by the Tribunal Judge, it was contended in the written statement that the recovery Van in which the deceased victim was at the material point of time was negligent contributing tangibly act to a great extent to the cause of accident, which Tribunal Judge failed to take care of to same in its real perceptive.
In the instance case, the claimants/respondents examined two witnesses including the wife of the deceased, as PW1 and another eye-witness, Biswajit Dey, as PW 2. Admittedly PW1 was not left with the opportunity to view the accident leading to the death of the deceased. The testimony of eye-witness however, graphically demonstrated the circumstances leading to the death of the deceased. The evidentiary value of eye-witness was considered to be of highest potentiality, because not only the eye-wittiness had stated the mode and manner of accident, but also left materials showing the circumstances giving him opportunity, he had, to view the accident, presumably from a close range of the place of accident. The eye-witness/PW-2 stated in his evidence with all emphasis that the accident had been occurred due to rash and negligent driving of the offending truck and thereby eliminating the possibility of having caused the accident for the contributory negligence on the part of the recovery Van. The alleged stand taken by appellant pertaining to head on collusion and consequent apportionment of liability to indemnify claimants, as suggested, in course of this appeal appears to be far from satisfactory.
After the instant of road traffic accident leading to the death of the deceased, a criminal case was initiated being Rajganj PS Case No.46/12 dated 08.03.2012. The investigating officer seized not only the offending truck, but also the recovery Van of the deceased. After completion of the investigation, chargesheet was submitted against the driver of the offending truck bearing No.HR-46-B-2154, the insurer of which is the appellant. No case, argued to be based on contributory negligence on the part of the driver of the recovery Van, could be established in course of such police investigation.
The Tribunal Judge considering evidence of oral witnesses together with the FIR and chargesheet decided the award upon proof of rash and negligent driving on the part of the offending truck involved in this accident.
It would be profitable her to refer the relevant paragraphs of a decision of Apex Court rendered in the case of T.O. Anthony v. Karvarnan and Ors. Reported in (2008) 3 SCC 748, which may be mentioned as hereunder:
"Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.
Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case.
The Tribunal ought to have examined extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.
The Apex Court in such case referred above had occasion to address the issue so as to distinguish composite negligence from contributory negligence, because the Tribunal in that case confused composite negligence with contributory negligence, while apportioning liability to indemnify the claimant, for the two vehicles having involved and also meeting head on collusion, proportionate to their degree or extent of contributory negligence. Contributory negligence for our present purpose is always subject to proof of certain things. Firstly the road traffic accident occurred was an out come of head on collusion in which the vehicle charged with contributory negligence partly for its own tangible voluntary acts with conscious knowledge revealing the extent of contributory negligence performed has to be essentially and necessarily established in evidence by the party denying the claim for indemnification under the behest of plea of contributory negligence.
Here in this case, though the insurance company took the plea of contributory negligence on the part of recovery Van of the deceased, but surprisingly the insurance company preferred not to examine any of the witness like owner of recovery van or anybody having had occasion to see the contributory negligence in support of that stand. In course of cross-examination to eye-witness, by appellants no suggestion was even put to eye-witnesses that the accident was caused due to head on collusion in between the recovery Van and the truck. Thus without proving contributory negligence in a case, based on head on collusion, if any, the onus of proving the contributory negligence was purely upon the appellant/insurance company, because it was appellant/insurance company, which itself asserted the same. Failure to discharge the onus surfacing contributory negligence would thus render the plea pertaining to head on collusion and consequent apportionment of liability between two vehicles involved in the accident, nugatory. The claim for compensation, as awarded by the Tribunal for the failure to prove the contributory negligence cannot be defeated merely by reason of negligence on the part of the recovery van in the given circumstances of this case.
The appeal fails being devoid of any merits.
With the disposal of appeal, connected application stands also disposed of.
Regarding cross objection filed by the respondent/claimant being COT No. 56 of 20017 challenge raised was quizzed to three counts. Firstly on selection of multiplier which according to respondent should have been 17 according to the decision of Apex Court rendered in the case of Sarala
Verma (Smt) and Ors. V. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121, secondly deduction should have been ¼ from the annual income of the deceased instead of 1/3, as already deducted from the annual income of the deceased, and lastly for not granting future prospect according to decision of the Apex Court delivered in the case of National Insurance Company Limited v. Pranay Sethi and Ors. reported in (2017) 16 SCC 680.
Admittedly Tribunal considered the victim to be of above 30 years old at the time of his death upon proving voter's identity card of the deceased and proceeded to deduct 1/3 towards the personal expenses of the deceased in arriving at the compensation. Though the deceased victim was described to be an employee Salvation Army', Himalayan Division, Fatapukur, Jalpaiguri with an income of Rs.6500/- per month, but the same could not be proved satisfactorily to establish the same. During the course of the trial conducted before the Tribunal, the claimants virtually having failed to prove the alleged income of the deceased conceded to notional income of deceased, held to be Rs. 3000/- per month for deciding the quantum of compensation. The claim case was admittedly filed by the mother of the deceased, wife of the deceased, minor daughter and minor son of the deceased. Therefore the family of deceased comprised of as many as four (04) dependent family members including mother of deceased. In the case of Sarala Verma (Smt) (supra) the apex Court elaborately addressed issues pertaining to the extent of deduction for personal expenses of deceased and selection of suitable multiplier and standardised the same, to be universally made applicable by all the Motor Accident Claims Tribunal in exercise of authority under Article 141 of the Constitution of India, after considering several decisions operating in this field.
The ratio laid down in the case of Sarala Verma (Smt)(supra) may be referred by quoting relevant paragraphs of 30 and 42, as hereunder:
"30.Though in some cases the deduction to be made towards personal and living expenses in calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
The determination of award in the instant case, held by the Tribunal, was upon selection of multiplier of 15 in a case, where victim suffered death when he was above 30 years old. The Tribunal in our considered opinion appears to have made a mistake in selecting multiplier 15, instead of 17, as per decision of the Apex Court rendered in the case of Sarala Verma (Smt) (supra).
Where the family of the deceased comprised of as many as four to six dependent family members of the deceased, the deduction towards personal expenses should have been ¼. Herein in this case Tribunal proceeded to deduct 1/3 towards the personal expenses of the deceased, which in our considered opinion appears to be contrary to law.
True it is that the Tribunal did not consider the future prospect of the deceased, but according to claimants, deceased was an employee 'Salvation Army', Himalayan Division, Fatapukur, Jalpaiguri. Such organization though philanthropic and charitable one, but sufficient enough to give a permanent status of employment to an employee working under it, for the contrary not having established. Ordinarily the income of a person cannot be construed to remain static for an indefinite period of time. The strive for betterment is the only attribute inherent to every human being. Every person thus can be expected to move fast as much as he can to the extent of his capability and potentiality for his betterment giving more and more security not only to himself, but also to his dependent family members in the given context of particular case. The Apex Court addressed the aforesaid aspect in the case of Pranay Sethi and Ors.(supra) and decided accordingly enunciating the ratio therein,, the relevant paragraphs of which may be delineated as follows:
59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The additional should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.8. Reasonable figures on conventional head, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
In that view of the matter when Tribunal did not grant anything towards future prospect, the claimants/respondents would thus necessarily have to be favoured with an additional amount of 50% of actual annual of the income of the deceased towards future prospect.
Reasonable figures on conventional heads should be 70% covering three components, namely loss of estate, loss of consortium and funeral expenses, as against Rs. 9500/- already awarded by the Tribunal.
The cross-objection bearing no. 56 of 2017 is thus disposed of accordingly modifying the award to the extent mentioned hereinbelow:
a) The respondents are entitled to a modified sum of Rs.5,37,500/- as award, the breakup of which is as follows:-
i) Rs. 3,000/- monthly income x 12 = 36,000/- annual income.
ii) Less 9,000/-, being ¼ spent on personal expenses of the deceased = 36,000 - 9,000 =27,000/-
iii) Addition of Rs.18,000/-, as future prospect, being 50%, of established income of the deceased, a person person having permanent employment suffered death when he was above 30 years old.
iv) Multiplication with application of suitable multiplier of 17 = 27000 x 17 = Rs. 459,000/-
v) Further addition of reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses to the extent of Rs.60,500 being less amount on such reasonable figures on conventional heads.
b) Further, interest at the rate already prescribed by the Tribunal from the date of filing of application for compensation till the modified sum of award covering all components is disbursed.
It was submitted verbally that a sum of Rs.25,000/- had already deposited as statutory deposit to the Registrar General of this Court, which was lying deposited with the bank in an interest fetching scheme of the bank. The appellant/insurance company, is directed to pay the modified sum of award covering all components, as indicated hereinabove, with interest from the date of application till disbursement to the Registrar General of this Court within three (3) weeks from the date of this order, less the amount, if any besides the statutory deposit, already deposited with the Registrar General in terms of the order passed by this Court. Liberty is given to claimants to make proper approach to Registrar General for release of such modified award, and if any approach is made by claimants, the Registrar General of this Court shall cause order releasing such modified sum of award forthwith upon establishing identity of claimants, including their bank accounts if any.
Liberty is given to claimant to approach to the Registrar General for release of statutory deposit of Rs.25000/- with interest accrued thereon if any in the mean time after liquidation of such modified sum of award.
Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities.
I agree.