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2001 DIGILAW 453 (PAT)

Pratap Rai v. Meera Kumari

2001-05-31

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Miscellaneous appeal has been preferred by Pratap Rai, one of the owners of two trucks which had head-on collusion killing Bharat Kumar Bhagat who was travelling in another truck. 2. The relevant facts of this case (Claim Case No. 25 of 1991/ AC No. 2/99) are that on 8th March 1991, Truck bearing Regd. No. BRK 6641 was hired by certain traders to carry goods from Guiabbagh. When this truck left Gulabbagh and it reached Singheshwar Sthan, on the way, another truck bearing Regd. No. BRK 4012 coming from opposite direction collided with the first mentioned Truck (BRK 6641). The result was that the deceased who was sitting on the truck bearing Regd. No. 6641 died because both the trucks had turned turtle on account of head on collision. It is the case of the appellant before this Court who is owner of Truck bearing Regd. No. 4012 that his truck was passing on the road empty. There was no passenger on his truck also. Moreover, some witnesses examined in the lower court stated that the truck driver of the Truck bearing Regd. No. 6641 was intoxicated and he was driving his truck negligentiy and rashly since the very beginning. So if at all any accident took place, it was on account of negligent driving of the truck on which the deceased was sitting. So there was no liability of the appellants truck driver. Moreover, interim compensation was paid by the Insurance Company with which the petitioners truck was insured. So in this view of the matter also, the petitioner was not liable to pay compensation, even if it was held that the petitioners driver was negligent. So the appellants lawyer submitted that the award granted by the lower court against the petitioner was illegal and unjustified. 3. So the claim of the appellant is that his driver did not make any contributory negligence. It is to be noted that the Tribunal examined the evidence of several witnesses and it came to the conclusion that the truck driver of the appellant was also responsible for contributory negligence and, hence, the appellant was also liable for paying compensation. The Tribunal also held that the owner of the other truck on which the deceased was sitting was also liable to pay compensation. The Tribunal also held that the owner of the other truck on which the deceased was sitting was also liable to pay compensation. The Tribunal exonerated the Insurance Company of both the trucks because the truck on which this deceased was sitting was carrying passengers by way of grace and, thus, it had violated the terms of Insurance. 4. As far the claim of the appellant that his driver had no hand in the alleged accident, I am to opine that, of course, certain witnesses said that the driver of truck bearing Regd. No. 6641 was intoxicated and there was admission of one witness also that the driver was being warned from the very beginning, still he failed to heed to this warning. But there are witnesses who said that the driver of the truck bearing Regd. No. 4012 was also driving the vehicle negligently and rashly and this truck was also being driven in speed. On perusal of the award dated 12th September 1994, it is apparent that the Tribunal had referred to the statements of witnesses who had spoken of the appellants truck being driven in speed as a result of which there was head-on collision. So I do not think the finding of the Tribunal in this connection is misplaced or misdirected or in error. The very fact that there was head- on collision between the two trucks making both of them turn turtle indicates that both the vehicles were in speed, not permitted by the Traffic Rules. If truck bearing Regd. No. 6641 only were in speed and the appellants truck would have been in proper speed and the driver alert, chance of head-on collision; perhaps, can be ruled out. So the circumstances of the case and the evidence of the witnesses to which the Tribunal has referred clearly indicated that both the trucks were in high speed resulting in head-on collision between the two trucks. 5. So it is apparent that the driver of the appellants truck was also negligent and rash in driving the vehicle. So far the iiability of the appellant is concerned, so far the law is concerned, the owner of the truck and the Insurance Company, both are jointly and severally liable. Of course, interim relief was paid by the Insurance Company, but that shall not exonerate the appellant from paying compensation to the claimants before the trial court. So far the iiability of the appellant is concerned, so far the law is concerned, the owner of the truck and the Insurance Company, both are jointly and severally liable. Of course, interim relief was paid by the Insurance Company, but that shall not exonerate the appellant from paying compensation to the claimants before the trial court. At best, the appellant can claim indemnity from the Insurance Company. So on this score, there is no illegality in the impugned order passed by the Tribunal. 6. Now the question is whether the Insurance Company of the appellant should be directed to pay or the appellant himself should pay the amount of compensation. In this connection, I am of the opinion that since there is no illegality in the impugned order passed by the lower court I do not think the impugned order can be reversed or modified or set aside simply because the Insurance Company of the appellant is liable to indemnity. It has already been held above that both the owners of the Insurance Company are jointly and severally liable. It further transpires that after deducting the amount of interim compensation the court directed the appellant and the owner of another truck to pay Rs. 41,500/- each to meet the remaining amount of compensation to the tune of Rs. 83,000/- from the total amount of Rs. 1,08,000/-. So the remaining amount of compensation was apportioned between two owners of the trucks in question. 7. Before concluding, I must refer to the argument of the claimants lawyer that the Tribunal assessed the income of the deceased and his father at Rs. 1,800/-. After dividing the income between the deceased and his father Rs. 900/- per month was the amount earned by the deceased. After deducting 1/3rd of this amount, Rs. 600/- per month would be amount of dependency of the claimants and so the annual dependency would be Rs. 72,000/- but the Court reduced this monthly amount of dependency to Rs. 500/-, The Tribunal then multiplied this amount by 18 and calculated the total amount at Rs. 1,08,000/-. The contention of the claimants lawyer was that the annual-dependency should have been fixed at Rs. 72,000/- after deducting 1/3rd of the total annual income. 72,000/- but the Court reduced this monthly amount of dependency to Rs. 500/-, The Tribunal then multiplied this amount by 18 and calculated the total amount at Rs. 1,08,000/-. The contention of the claimants lawyer was that the annual-dependency should have been fixed at Rs. 72,000/- after deducting 1/3rd of the total annual income. However, I find that there was mother of the deceased also as one of the claimants and if her age was taken Into compensation in applying the multiplier, in that case the multiplier will be reduced. But the lower court used the maximum multiplier which was 18 as per the schedule of M.V.Act of 1994. So in any case; the amount of compensation would be, perhaps, adjusted. So I think there is no necessity to interfere with the total amount of compensation. 8. The contention of the Insurance Company in this case as Respondent nos. 4 and 5 was to the effect that the multiplier in such cases should be such as would release the annual amount of dependency from the fixed deposit amount to be calculated by the Court. The contention of the Companys lawyer, therefore, boiled down to the effect that in all cases, only that Multiplier should be used which will bring the total amount of compensation, which if deposited in a fixed deposit scheme, would release the annual amount of dependency. But I do not find myself in agreement with this contention of the insurance Company Lawyer because of the settled principles of law decided by several High Courts and the Hon ble Apex Court is that in calculating the amount of compensation, two methods are to be adopted. One of The methods is the multiplier method in order to avoid arbitrariness and whimsical calculation of the compensation amount and the other method is the method by which an amount is fixed, the deposit of which into the Bank will yield the annua dependency amount as interest fill the life time of the claimant. The Companys lawyer referred to a decision rendered by the Hon ble Supreme Court as reported in A.C.J. 1-994 (Vol. 1) 1 (General Manager Kerala State Road Transport Corporation V/s. Sushmma Thomas). However, in the aforesaid case, itself, multiplicand was assessed to be Rs. The Companys lawyer referred to a decision rendered by the Hon ble Supreme Court as reported in A.C.J. 1-994 (Vol. 1) 1 (General Manager Kerala State Road Transport Corporation V/s. Sushmma Thomas). However, in the aforesaid case, itself, multiplicand was assessed to be Rs. 10000/- which was the dependency amount at the prevailing rate of interest (10 per cent) and the amount of fixed deposit was assessed to be Rs. 1,00,000/- which was calculated by Multiplying Rs. 10,000/- by 10. But the amount of compensation fixed by the Hon ble Supreme Court was assessed by using the multiplier 12 and not 10. So it is apparent that in all cases, it is not necessary that the multiplier should be the figure which must determine an amount the fixed deposit of which could yield the annual dependency amount at the prevailing rate of interest. So the principle of law is quite clear that in order to avoid whimsical amount of compensation, the court must use the multiplier method or the fixed deposit method in order to assess the appropriate and just amount of compensation. In a particular reported case (supra) it was directed that the compensation amount should be invested in fixed deposit in case of claimant being minors, widows etc. But when a Tribunal makes any award of a lump sum by way of compensation, the multiplier method is the surest and the best method to award compensation which in the instant case, the Tribunal has used. 9. The claimant-respondents lawyer has also challenged the award, especially regarding interest, it was submitted that the interest should be awarded from the date of filing of the application and not from any other date. He referred to Section 171 of the M.V. Act. But I am of the opinion that grant of interest is discretion of the court u/s 171 of the M.V. Act, it should not be prior to the date of filing of the application. That does not mean that it must be granted from the date of application. So if the Tribunal ordered that if the amount of compensation is not paid within three months from the date of the order, the claimants should be entitled to a simple interest at the rate of 6%, it cannot be said to be unjust. That does not mean that it must be granted from the date of application. So if the Tribunal ordered that if the amount of compensation is not paid within three months from the date of the order, the claimants should be entitled to a simple interest at the rate of 6%, it cannot be said to be unjust. The Tribunal further directed that 50% of the amount of compensation was to be deposited in the National Saving Schemes of their own choice. 10. As a result of the aforesaid discussion on the entire gamut of this case and the appeal, I do not think the award passed by the Tribunal deserves to be interfered with. So this appeal is dismissed.