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Judgment
Rajeev Gupta, C.J.—This is claimants'' appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari, (for short ''the Tribunal'') vide award dated 15.10.2009, passed in Claim Case No. 82/2009.
As against the compensation of Rs. 17,50,000/- claimed by the appellants/ claimants, unfortunate widow, minor children and parents of deceased Mahesh Kumar Tandan, by filing a claim petition u/s 166 of the Motor Vehicles Act, for his death in the motor accident on 18.10.2008, the Tribunal awarded a total sum of Rs. 1,06,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Mahesh Kumar Tandan died on account of the injuries sustained by him in the motor accident on 18.10.2008; the accident occurred due to the negligence of the motorcyclist of the motorcycle on which deceased Mahesh Kumar Tandan was travelling as pillion-rider and the driver of the other vehicle Truck bearing Registration No. MP-09/KA-9349; the negligence of the motorcyclist and the Truck driver was to the extent of 50% each; as the above Truck on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimants.
The Tribunal assessed the income of the deceased at Rs. 15,000/- per annum on the basis of the notional income prescribed in the Second Schedule u/s 163-A of the Motor Vehicles Act. By deducting 1/3rd of Rs. 15,000/- towards the personal expenses of the deceased, the claimants'' dependency was assessed at Rs. 10,000/- per annum. By multiplying the annual dependency of Rs. 10,000/- with the multiplier of 18, the compensation was worked out to Rs. 1,80,000/- . By awarding further sum of Rs. 32,000/- under other heads, the Tribunal assessed the total compensation payable to the claimants at Rs. 2,12,000/- . As the Truck driver was held liable for the accident to the extent of 50% only, the Tribunal directed the insurer of the Truck to pay 50% of Rs. 2,12,000/- i.e. Rs. 1,06,000/- as compensation to the claimants for the death of deceased Mahesh Kumar Tandan in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs. 1,06,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
Shri Shivendu Pandya, Learned Counsel for the appellants submitted that the Tribunal has erred in holding it to be a case of ''Contributory Negligence'' as the present case is one of ''Composite Negligence'' and not ''Contributory Negligence''; in not accepting the claimants'' evidence about the income of the deceased and in assessing his income at Rs. 15,000/- per annum only; in assessing/ awarding low compensation of Rs. 2,12,000/- / 1,06,000/- only.
Shri Sudhir Agrawal and Shri P. Dutta, Learned Counsel for respondent No. 2, the Oriental Insurance Company Limited, the insurer of the Truck, on the other hand, supported the award and contended that the compensation of Rs. 2,12,000/- / 1,06,000/- assessed/ awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
So far as the finding recorded by the Tribunal that the Truck driver was responsible for the accident to the extent of 50% only and thereby directing only 50% of the compensation assessed to be paid by the insurer of the Truck is concerned, it is apparent that deceased Mahesh Kumar Tandan was only a pillion-rider on the motorcycle and he was not driving the motorcycle at the time of the accident.
The Apex Court while outlining the distinction between the cases of ''Contributory Negligence'' and ''Composite Negligence'' in the case of T.O. Anthony Vs. Karvarnan and Others, , observed in paras 6 and 7 :
"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 the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed in correct the said error.
As in the present case, deceased Mahesh Kumar Tandan admittedly was not driving any of the two vehicles involved in the accident i.e. motorcycle and Truck, the Tribunal certainly has erred in holding it to be a case of ''Contributory Negligence'' vis-a-vis deceased Mahesh Kumar Tandan. In view of the above quoted dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (Supra), we hold that the present case is one of ''Composite Negligence'' wherein the claimants have choice of claiming the entire amount of compensation from any of the two tort feasor. As in the present case, the claimants have opted to claim entire amount of compensation from the owner-cum-driver and insurer of the Truck, they are liable to pay the entire amount of compensation to the claimants.
Now we shall examine as to whether the compensation of Rs. 2,12,000/- assessed by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
In a motor accident claim case, what is important is that the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.
True, the claimants pleaded that deceased Mahesh Kumar Tandan used to earn Rs. 6,000/- per month by working as Labor in Gurukripa Rice Mill, Kurud, no cogent, reliable and clinching evidence was led by the claimants for establishing the income of the deceased to the extent of Rs. 6,000/- per month. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants'' evidence about the income of the deceased.
Nevertheless, the income of the deceased assessed by the Tribunal at Rs. 15,000/- per annum in the year 2008 is certainly on the lower side and requires reconsideration.
Considering that deceased Mahesh Kumar Tandan was aged about 28 years on the date of the accident, we are of the opinion that he could have easily earned Rs. 75 -80/- per day even by working as an unskilled labor, in the year 2008. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 2,000/- per month and Rs. 24,000/- per annum.
By deducting the usual 1/3rd of Rs. 24,000/- towards the personal expenses of the deceased, the claimants'' dependency is assessed at Rs. 16,000/- per annum.
As deceased Mahesh Kumar Tandan was aged about 28 years on the date of the accident, the appropriate multiplier, in our opinion, would be 17 in view of the dictum of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, wherein multiplier of 17 has been prescribed for the age group between 26-30 years.
By multiplying the annual dependency of Rs. 16,000/- with the multiplier of 17 the compensation works out to Rs. 2,72,000/- . The claimants are further entitled to receive Rs. 5,000/- towards funeral expenses; Rs. 5,000/- for loss of estate; and Rs. 5,000/- for loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs. 2,87,000/- as compensation for the death of deceased Mahesh Kumar Tandan in the motor accident.
Learned Counsel for the parties submitted that with a view to avoid any possible dispute between the parties before the Tribunal about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
Considering all the relevant aspects of the matter including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs. 1,81,000/- at Rs. 20,000/- .
For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. By setting aside the finding of ''Contributory Negligence'' recorded by the Tribunal, the compensation of Rs. 1,06,000/- awarded by the Tribunal is enhanced to Rs. 2,87,000/- with further quantified amount of interest of Rs. 20,000/- on the enhanced amount of compensation of Rs. 1,81,000/- .
Respondent No. 2 the Oriental Insurance Company Limited is granted three months'' time for depositing the total sum of Rs. 2,01,000/- (Rupees two lakhs one thousand only) ( Rs. 1,81,000/- towards enhanced amount of compensation + Rs. 20,000/- towards quantified amount of interest on the enhanced amount of compensation) before the concerning Claims Tribunal.
No order as to costs.