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2016 DIGILAW 1026 (RAJ)

Subhash Chandra v. Union of India

2016-07-20

ARUN BHANSALI

body2016
JUDGMENT : Mr. Arun Bhansali, J. This appeal is directed against the judgment and award dated 30.7.2008 passed by the Motor Accident Claims Tribunal, Sriganganagar ('the Tribunal'), whereby the Tribunal for death of one Kapil Kumar has awarded a sum of Rs. 1,56,000/- as compensation along with interest @ 7.5% p.a. w.e.f. 3.7.2006. 2. The application was filed by Subhash Chandra and Munni Devi, parents of deceased Kapil Kumar with the allegation that Kapil along with his cousin brother Anil Kumar was returning from his shop to Suratgarh when near the Air Force station, a Bus No.96 P 11034 M belonging to Air Force (Union of India), which was being driven rashly and negligently collided with the said motor cycle, wherein the deceased was the pillion rider, which resulted in serious injuries to the said Kapil Kumar, who died on account of such injuries. 3. It was claimed that the deceased was aged 22 years and used to earn Rs. 62,234/- per annum from his shop and employment, a compensation of Rs. 27,25,000/- was demanded. 4. The application was resisted by the respondent. It was claimed that no documents in support of the age and income has been produced, based on returns of income, the annual income cannot be ascertain. Anil Kumar, who was driving the motor cycle, was not impleaded as party and therefore, the claim was not maintainable. It was alleged that the accident occurred on account of negligent driving by Anil Kumar, who lost the balance of motor cycle on seeing the bus coming towards the motor cycle and struck the bus after the motor cycle skidded on the road. 5. Based on the pleadings of the parties, the Tribunal framed four issues. 6. On behalf of the claimants, three witnesses were examined and on behalf of the respondent statement of Subhash Chandra was recorded. 7. After hearing the parties, the Tribunal came to the conclusion that Anil Kumar was not a necessary party; on the issue of negligence, the Tribunal came to the conclusion that on the preponderance of probabilities both the motor cycle driver and the bus driver were equally negligent and the accident occurred on account of such negligence, which resulted in death of Kapil Kumar. 8. 8. While determining the compensation, the Tribunal came to the conclusion that though Income Tax Returns ('ITR') Exhibit-6 to 11 have been produced for the year 2003-04 to the period 31.8.2008, the supporting material regarding the said ITRs was not produced and the employer was not examined and based on the said aspect, determined the income of the deceased at Rs. 40,000/- p.a., reduced the same by 50% on account of contributory negligence, further deducted ?rd towards personal expenses and based on the age of the parents applying multiplier of 11, awarded compensation towards loss of income at Rs. 1,43,000/-. The Tribunal further awarded Rs. 2,000/- towards funeral expenses, Rs. 1,000/- towards cost of litigation and Rs. 10,000/- towards loss of love & affection and on the said amount awarded interest @ 7.5% p.a. as noticed herein-before. 9. It is submitted by learned counsel for the appellant that the Tribunal fell in error in coming to the conclusion that there was contributory negligence. It was further submitted that as the deceased Kapil Kumar was a pillion rider and was not driving the motor cycle, irrespective of the fact whether there was contributory negligence or not, the amount of 50% could not have been deducted by the Tribunal from compensation, which aspect is well settled as the said case would be a case of composite negligence and for composite negligence, the amount cannot be deducted from the compensation. 10. Reliance has been placed on judgments of Hon'ble Supreme Court T.O. Anthony v. Karvarnan and Ors. : (2008) 3 SCC 748 and Khenyei v. New India Assurance Company Limited & Ors. : (2015) 9 SCC 273 . 11. It is further submitted that the Tribunal committed error in assessing the income of the deceased at Rs. 40,000/- p.a. only despite production of the ITRs for over four years from before the death of deceased and therefore, the finding on the said aspect also deserves to be set-aside and the appellant be awarded just compensation on account of death of her son Kapil Kumar. 12. 40,000/- p.a. only despite production of the ITRs for over four years from before the death of deceased and therefore, the finding on the said aspect also deserves to be set-aside and the appellant be awarded just compensation on account of death of her son Kapil Kumar. 12. Learned counsel for the respondent submitted that the award passed by the Tribunal is just and proper in the circumstances of the case, inasmuch as, once the finding regarding contributory negligence was recorded by the Tribunal and the appellants failed to implead Anil Kumar as party to the said application for compensation, the award was rightly deducted by 50% on account of such contributory negligence. 13. Regarding the assessment of compensation, it was submitted that based on the material available on record, the Tribunal was justified in assessing the income of the deceased at Rs. 40,000/- p.a. as the ITRs produced by the appellants were not supported by any other material and therefore, the appeal deserves to be dismissed. 14. During the pendency of the appeal, appellant No.1 – father of the deceased has died. 15. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 16. It is not in dispute that deceased Kapil Kumar was pillion rider on the motor cycle being driven by Anil Kumar and the said motor cycle met with an accident with the bus belonging to the respondent. The Tribunal based on the evidence available on record including the statement of AW-2 Dinesh Kumar, who is an eye witness to the accident and NAW-1 Sudhakaran, driver of the bus, came to the conclusion that the driver of the motor cycle as well as the bus both were negligent and the accident occurred on account of negligence of both Anil Kumar and Sudhakaran. However, the Tribunal apparently committed error in treating the said aspect as contributory negligence. 17. The distinction between contributory negligence and composite negligence has been explained by the Hon'ble Supreme Court in the case of T.O. Anthony (supra), wherein it was held as under:- "6. "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. "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." 18. Recently, the Hon'ble Supreme Court in the case of Khenyei (supra), after noticing the issue involved in the case as to whether it is open to the claimants to recover entire compensation from one of the joint tortfeasors, particularly when in the accident caused by composite negligence of two drivers, after referring to the judgment in the case of T.O. Anthony (supra) and considering the entire law on the subject held as under:- "22. What emerges from the aforesaid discussion is as follows : 22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. He can recover at his option whole damages from any of them. 22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/Tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." 19. From the law laid down by the Hon'ble Supreme Court in the case of T.O. Anthony (supra) and Khenyei (supra), it is apparent that the present is a case of composite negligence as the deceased Kapil Kumar did not in any manner contributed to the said accident as he was merely a pillion rider. 20. Further, as in the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the claimant is not permissible, the claimant can recover, at his option, whole damages from any of them and that it is not necessary for impleadment of two drivers, who are alleged to be joint tortfeasors. 21. In view thereof, the finding of the Tribunal regarding contributory negligence and the deduction of compensation based on such finding cannot be sustained and the same is, therefore, set-aside. 22. So far as the determination of compensation is concerned, witnesses AW-1 – father, AW-2 Dinesh Kumar and AW-3 Rajendra Taneja, Income Tax practitioner were produced. By way of documentary evidence, ITRs for the year 2002-03 (Ex.-6), 2003-04 (Ex.-7), 2004-05 (Ex.-8), 2005-06 (Ex.-9) were produced. A perusal of the said exhibits reveal as under:- Year Total Income Salary Business 2002-03 Rs. 66,000/- Rs. 60,000/- Rs. 6,000/- 2003-04 Rs. 58,000/- Rs. By way of documentary evidence, ITRs for the year 2002-03 (Ex.-6), 2003-04 (Ex.-7), 2004-05 (Ex.-8), 2005-06 (Ex.-9) were produced. A perusal of the said exhibits reveal as under:- Year Total Income Salary Business 2002-03 Rs. 66,000/- Rs. 60,000/- Rs. 6,000/- 2003-04 Rs. 58,000/- Rs. 40,000/- Rs. 18,000/- 2004-05 Rs. 61,000/- Rs. 16,000/- Rs. 45,000/- 2005-06 Rs. 62,340/- Rs. 14,400/- Rs. 47,940/- 2006-07 Rs. 37,425/- Rs. 15,000/- Rs. 22,425/- (upto 31.8.2015) 23. A perusal of the above returns clearly reflect that the deceased was having income since the year 2002-03 and was filing Income Tax Returns in this regard. The significant aspect of the matter is that the returns have been filed at the relevant time and not in one go i.e. for the year 2002-03, it was filed on 12.11.2003; for the year 2003-04, it was filed on 12.11.2003; for the year 2004-05, it was filed on 22.9.2004; for the year 2005-06, it was filed on 9.9.2005; for the year 2006-07, it was filed after the death of Kapil Kumar on 13.12.2006. The very fact that the returns were being filed in time for the period prior to the death of Kapil Kumar, the fact that deceased was engaged in business and was having income through salary as well, the returns also indicate the status of the deceased in Kapil Gift House & Gift Gallery and therefore, there was apparently no reason for discarding the returns filed by the deceased and not to assess the income as indicated therein. However, from the table above, it is apparent that the deceased had indicated varying income in so far as his salary was concerned, inasmuch as, in the year 2003-04, the income from salary has been indicated at Rs. 40,000/-, which has been reduced to Rs. 16,000/- in the year 2004-05 and has further been reduced to Rs. 14,400/- in the year 2005-06 and for the period of five months, in the year 2006-07, the income from salary has been shown as Rs. 15,000/-. The said aspect has not been explained by any of the witnesses, inasmuch as, there cannot be so much of variation in the salary, which instead of going up has gone down from year to year and in the year of death it has again shoot up. 24. In view of the above, though the claimants have claimed the income of the deceased at Rs. 24. In view of the above, though the claimants have claimed the income of the deceased at Rs. 60,000/- p.a., the same deserves to be assessed at Rs. 50,000/- p.a. looking to the variation in the income shown in the returns. 25. So far as deduction is concerned, in view of the fact that deceased was unmarried, in view of the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. : (2009) 6 SCC 121 , 50% deduction is required to be done on account of personal expenses. 26. So far as applicability of the multiplier is concerned, in view of the law laid down by the Hon'ble Supreme Court in the case of Amrit Bhanu Shali & Ors. v. National Insurance Co. Ltd. & Ors. : 2012(3) RLW 2748 (SC), the multiplier has to be adopted based on the age of the deceased and therefore, based on the said principle and the multiplier as indicated in the case of Sarla Verma (supra), the multiplier of 18 is required to be adopted. 27. Based on the above, the loss of income would be assessed as Rs. 50,000-25,000=25,000 x 18 = 4,50,000/-. Though the Tribunal has awarded a meagre sum towards funeral expenses and loss of love and affection, in view of the fact that the award was passed in the year 2008, by then the law as now laid down by the Hon'ble Supreme Court was not available, the said amount is enhanced to Rs. 7,000/- towards funeral expenses and Rs. 50,000/- towards loss of love and affection for the surviving parent. 28. Resultantly, the appellant-claimant would be entitled to total compensation of Rs. 5,07,000/-. The appellant would also be entitled for interest @ 7% p.a. on the enhanced amount of compensation w.e.f. 3.7.2006 till the date of actual payment and the same would be paid in her saving bank account by the Tribunal. 29. So far as the submissions made by learned counsel for the respondent, regarding right of the respondent to take proceedings against Anil Kumar, the driver of the motor cycle is concerned, the law laid down by the Hon'ble Supreme Court in the case of Khenyei (supra) takes care of the said situation and no direction needs to be given by this Court in this regard. 30. 30. In view of the above discussion, the appeal filed by the appellant is partly allowed. The award passed by the Tribunal is modified to the extent that instead of a sum of Rs. 1,56,000/- along with interest, the appellant would be entitled to a further sum of Rs. 3,51,000/- as compensation along with interest on the enhanced amount @ 7% p.a. from 3.7.2006 till the date of actual payment. The amount would be paid in terms of the directions indicated herein-before. The respondent is directed to deposit the enhanced amount of compensation along with interest within a period of six weeks from the date of judgment. Appeal partly allowed.