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2017 DIGILAW 799 (MP)

NEW INDIA ASSURANCE COMPANY LIMITED v. CHANDA

2017-07-05

NANDITA DUBEY

body2017
ORDER : NANDITA DUBEY, J. 1. With consent of learned counsel for the parties, heard finally. 2. This appeal by the Insurance Company is arising out of the award dated 02.11.2015, passed in Claim case No.74/2015, whereby an award of Rs. 16,56,880/- alongwith an interest at the rate of 6% has been awarded. 3. The facts of the case in brief are that respondents No.1 to 4 filed a cliam petition under Section 166 of the M.V. Act against the appellant/Insurance Company and one Mohd. Usman and Irfan Ahmed, claiming compensation to the tune of Rs. 40,50,000/- alongwith 9% interest. It was stated that the deceased was the owner and the driver of truck No.MP-15 HA 1154 and while going from Sagar to Chhindwara, when at Choukhada Tiraha, another truck bearing registration No. UP-78 BT 5362, driven rashly and negligently by driver Rambaboo, head on collusion with the truck of the deceased, resulting in the instant death of the deceased as well as of driver Rambaboo. 4. The FIR was lodged by one Rakesh Vishwakarma at police Station Kundipura, district Chhindwara. 5. Defendant No.1 Mohd. Usman filed his written statement and denied the fact of accident. It was contended that no accident happened with his truck. Driver of his truck Rambaboo had valid licence and the vehicle was insured with appellant/Insurance Company. It was further contended that the accident happened due to the fault of the deceased and prayed that the petition filed by the claimants be rejected. 6. Appellant/Insurance Company (defendants No.2 and 3) filed the written statement and denied the accident as well as the liability. It was contended that drivers of both the vehicles breached the conditions of insurance policies nor they had valid licence with them. The accident happened due to the negligence of the drivers, hence the Insurance Company be not liable for payment of compensation and prayed for dismissal of the petition. 7. On the basis of pleadings, the Tribunal has framed as many as six issues and after appreciation of the evidence, held that both the vehicles were driven in a rash and negligent manner and there was a head on collusion. It was a case of contributory negligence. Considering the age of the deceased as 43 years and taking the income as the per the income tax returns to be Rs. It was a case of contributory negligence. Considering the age of the deceased as 43 years and taking the income as the per the income tax returns to be Rs. 2,12,560/- per annum and considering the number of claimants, after deducting ? towards personal expenses, calculated the dependency to be Rs. 1,20,048/- and applying the multiplier of 14, awarded an amount of Rs. 16,60,672/-. Apart from that the Tribunal has also awarded some amount under conventional heads, Rs. 1,00,000/- under the head of consortium and Rs. 25,000/- under the head of funeral expenses, in total Rs. 18,05,672/- has been awarded. 8. Later on, a review application under Section 114 read with section 152 of the C.P.C. was filed stating that the Tribunal has wrongly deducted? towards personal expenses, whereas it should be 1/4. Considering the case of Sarla Verma and others v. Delhi Transport Corporation (2009) 6 SCC 121 , the review application was allowed and the deduction towards personal expenses be modified from 1/5 to 1/4 and the compensation awarded to the claimants be reduced from Rs. 18,05,672/- to Rs. 16,56,880/- alongwith 6% interest from 09.01.2015. 9. The contention of learned counsel for the appellant/Insurance Company is twofold :- (1) The Tribunal has not correctly assessed the income of the deceased and relied on the income tax returns filed by the claimants, which were only made for taking loan from the Bank. (2) It was a case of contributory negligence, therefore, the Tribunal has erred in awarding full compensation. 10. Per contra, learned counsel for respondents No. 1 to 4 supported the award. 11. I have heard the learned counsel for the parties at length and perused the record. 12. As regard to the first contention, it is observed that claimants have filed the income tax return of three consecutive years, i.e., 2008-09, 2009-10 and 2010-11. These were filed on three separate years. Hence, the contention of learned counsel for the appellant/Insurance Company that these were filed only to take loan is not sustainable, therefore, the first contention is rejected. 13. As regard to the second contention, it is observed that the Tribunal in para 8 has held that the accident was due to head on collusion, which shows that both the drivers, Rambaboo as well as the deceased were driving the trucks rashly and negligently. 13. As regard to the second contention, it is observed that the Tribunal in para 8 has held that the accident was due to head on collusion, which shows that both the drivers, Rambaboo as well as the deceased were driving the trucks rashly and negligently. It was held that 50% contributory negligence of deceased driver and 50% of driver Rambaboo of truck No.UP 78 BT 5362. 14. In the case of Khenyei v. New India Assurance Co. Ltd. and others, 2016(2) M.P.L.J. (S.C.) 18 : AIR 2015 SC 2261 , the Supreme Court has held that there is a difference between contributory negligence and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence, whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. 15. In the case of T.O. Anothony v. Karvarnan and others [ 2008 (3) SCC 748 ], it was held that in the case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. 16. Therefore, when two vehicles were involved in the accident and the Tribunal has given a finding of 50-50% contributory negligence, the compensation to the legal representatives of the deceased has to be reduced by 50%, in view of the above legal proposition. 17. Accordingly, this appeal is partly allowed and the compensation awarded by the Tribunal is reduced by 50%, which comes to Rs. 8,28,440/- with interest @ 6% from the date of filing of claim petition till its realization. 18. Resultantly, this appeal is partly allowed as aforesaid. In the facts and circumstances of the case, there shall be no order as to costs.