Chandrika Bai Sahu And Ors. v. Mohd. Ashique And Ors.
1997-06-30
R.P.GUPTA, S.K.DUBEY
body1997
DigiLaw.ai
JUDGMENT S.K. Dubey, J. 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') has been filed by the claimants/appellants dissatisfied of the compensation awarded vide award dated 27.7.1994, passed in Claim Case No. 8 of 1992 by III Additional Motor Accidents Claims Tribunal, Bastar. 2. Brief facts giving rise to this appeal are thus: One Mohanlal Sahu, a constable in police force of State of M.P. died in motor accident when he was on duty and was travelling in police van No. MPP 3811 on 23.6.1991 driven by respondent No. 4 during the course of employment of respondent No. 5 which met with an accident at Narayanpur road because of the collision with truck No. MP-25-5265 driven by the respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. The legal representatives of the deceased, viz., widow, appellant No. 1, aged 30 years, appellant Nos. 2 to 5 minor children between 5 to 14, and old parents, appellant Nos. 6 and 7, filed application under Section 166 of the Act to claim compensation of Rs. 6,72,000/- for the death caused in motor accident by the use of the two vehicles. The Tribunal after appreciating the evidence adduced by the parties recorded a categorical finding that both the drivers of the offending vehicles were equally negligent as a result of which the accident occurred and Mohanlal Sahu received multiple injuries who was shifted to hospital and died on 29.12.1991. The Tribunal estimated the dependency of Rs. 470/- per month, yearly Rs. 5,640/- out of the monthly pay packet of the deceased Rs. 1,950/-. A multiplier of 16 was applied to the multiplicand of Rs. 5,640/-. An amount of Rs. 90,240/- was determined as compensation with interest thereon at 12 per cent per annum from the date of application, i.e., 17.6.1992. The amount so awarded was apportioned in equal proportion and was directed to be paid by the owner, driver and insurer of the truck MP-25-5265 and owner and driver of MPP 3811. 3. Mr. Umesh Trivedi, learned Counsel for the appellants has submitted that the Tribunal has estimated the dependency at Rs. 470/- by deducting Rs. 500/- and 1/8th of Rs. 1,450/- towards the personal living expenses of the deceased. The Tribunal further deducted Rs. 800/- towards pay to one of the deceased's sons who was given compassionate appointment.
3. Mr. Umesh Trivedi, learned Counsel for the appellants has submitted that the Tribunal has estimated the dependency at Rs. 470/- by deducting Rs. 500/- and 1/8th of Rs. 1,450/- towards the personal living expenses of the deceased. The Tribunal further deducted Rs. 800/- towards pay to one of the deceased's sons who was given compassionate appointment. It was submitted that the deceased was maintaining seven dependants. He was getting Rs. 1,950/- and was in regular employment of State Government. Therefore, to augment the multiplicand, prospects of future career ought to have been taken into consideration in terms of money as paid by the Supreme Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC). Besides, the deceased could not have afforded on himself to spend Rs. 684/- per month when he was to maintain seven members of the family who were completely dependent on his earning. It was further submitted that the Tribunal also could not have deducted the pay of his son who got compassionate appointment after the death of the deceased. A Division Bench decision of this Court in M.P. Electricity Board v. Ram Mohan Shrivastava 1998 ACJ 651 (MP) and a decision of the Orissa High Court in Oriental Fire & General Ins. Co. Ltd. v. Laxmi Patra 1992 ACJ 390 (Orissa), were cited. 4. It is well settled that the multiplier method is logically sound and legally well established. The multiplier represents the number of years purchase on which the loss of dependency is capitalised. [See Susamma Thomas' case 1994 ACJ 1 (SC)]. The deceased was in a regular service of the Police Force of the State of M.P. Therefore, he was bound to earn increments and there were chances of promotion as at the time of death the deceased was only 35 years of age. Therefore, to augment the multiplicand taking into account the future prospects of advancement in life and career should also be counted in terms of money. Hence, we are of the opinion that it will be appropriate to take into account the monthly pay of the deceased at Rs. 2,500/-; in that one-third deduction is given for the personal living expenses of the deceased the dependency would come to Rs. 1,650/- per month, yearly Rs. 19,800/-, applying multiplier of 16 into the multiplicand of Rs. 19,800 the amount works out to Rs.
2,500/-; in that one-third deduction is given for the personal living expenses of the deceased the dependency would come to Rs. 1,650/- per month, yearly Rs. 19,800/-, applying multiplier of 16 into the multiplicand of Rs. 19,800 the amount works out to Rs. 3,16,800/- to which a sum of Rs. 10,000/- is added towards loss of consortium to the widow and Rs. 2,000/- towards funeral expenses, the total sum of Rs. 3,28,800/- which the appellants would be entitled with interest. 5. Here, we may state that the pay received by the son on compassionate appointment after death of the deceased cannot be deducted for estimating the dependency and for determining the compensation. It is well settled that while fixing the multiplicand and multiplier the Tribunal or a Court has to assess the compensation for deprivation of the dependency and the compensation which they would have been entitled had the deceased been alive. There is a distinction between money coming into the hands of the claimants 'at death' and 'on account of death'. The concept of mitigation of damages may be relevant while computing damages on account of death due to accident but a tortfeasor is not to be given the benefit of any money that comes into the hands of the claimant on account of death of a near and dear. Therefore, any earning by a family member on account of compassionate appointment cannot be given set off. [See the decision of this Court in M.P. Electricity Board v. Ram Mohan Shrivastava 1998 ACJ 651 (MP) and decision of Orissa High Court in Laxmi Patra 's case 1992 ACJ 390 (Orissa)]. 6. It is a case of composite negligence because of the collision between the police van and the truck. Therefore, in the case of composite negligence the amount of compensation can be recovered jointly or severally from the joint tortfeasors. But as the Tribunal has recorded a finding that both the drivers of the offending vehicles were equally negligent for the accident, we are of the view that it would be proper to make a direction to specify the amount payable by the owner, driver of the police van and the owner, driver and insurer of the truck which would be payable in equal proportion with accrued interest at the rate of 12 per cent per annum from the date of application till payment.
The respondents shall deposit the amount as directed above within a period of three months less the amount already deposited from the date of supply of certified copy. On deposit the amount shall be disbursed keeping in mind the guidelines laid down by the Supreme Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC) and Lilaben Udesing Gohel v. Oriental Insurance Co. Ltd. 1996 ACJ 673 (SC). 7. In result the appeal is allowed with costs. The award of the Tribunal shall stand substituted as stated hereinabove. Counsel's fee Rs. 1,000/-, if pre-certified. C.C. as per rules.