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2018 DIGILAW 1345 (PAT)

Samiya Devi v. Satish Saha

2018-08-23

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellant and learned counsel for the respondent no.2-National Insurance Company Limited on this miscellaneous appeal. None turned up on behalf of respondent no.1 despite service of notice. 2. This miscellaneous appeal has been preferred by the claimant-appellant against the judgment dated 04.03.2010 and award dated 17.03.2010 passed by the 3 rd Additional District Judge cum Motor Vehicle Accident Claim Tribunal, Saran at Chapra in Claim Case No. 73 of 2004 whereby the learned Tribunal allowing the claim petition directed the opposite party no.2-National Insurance Company Limited to pay compensation to the tune of Rs. 75,925/- along with the interest at the rate of 8% per annum from the date of filing claim petition i.e. 22.11.2004 till its realisation to the claimant. 3. Factual matrix of the case is that the claimant filed Claim Case No. 73 of 2004 under Section 163(A) of the Motor Vehicle Act for awarding compensation to the tune of Rs. 5 lakhs along with the interest at the rate of 12% per annum from the date of filing claim petition with the case in succinct that son of the claimant namely Anil Rail was khalasi of the truck bearing registration no. WB-23A-0136. On 13.09.2004 at 5 PM, he sustained grievous injury in the accident due to collision between the aforesaid truck and another truck bearing registration no. NL-02D-6414 at Raj Bandh, G.T. Road, Bardwan, P.S. Kanksna. He was rushed to the S.D. Hospital, Vidhan Nagar, Durgapur to accord him medical aid where he succumbed to his injury in the course of treatment. Regarding the aforesaid accident, Kanksha P.S. Case No. 168 of 2004 was registered. Further case of the claimant is that the deceased was aged about 18 years at the time of accident and he used to get Rs. 3000 per month as salary and Rs. 313/- as khuraki. Truck No. WB-23A-0136 was hailing to the respondent no.1 (opposite party no.1) and it was insured by the respondent no.2 (opposite party no.2). 4. Opposite party no.2 put its appearance in the case and filed written statement. Claimant also adduced ocular as well as documentary evidence in buttress of her case. 5. After hearing the parties and perusing the record, the learned Tribunal passed the aforesaid judgment and award as detailed in the earlier paragraph. 6. 4. Opposite party no.2 put its appearance in the case and filed written statement. Claimant also adduced ocular as well as documentary evidence in buttress of her case. 5. After hearing the parties and perusing the record, the learned Tribunal passed the aforesaid judgment and award as detailed in the earlier paragraph. 6. Being aggrieved and dissatisfied with the impugned judgment and award, the claimant has preferred this appeal. 7. It is submitted by learned counsel for the appellant that there was collision between two trucks bearing registration nos. WB-23A-0136 and NL-02D-6414 hence the drivers of both the trucks are liable for the same. It is a case of composite negligence and not of the contributing negligence. In case of composite negligence, there is joint and several liability of both the tortfeasors and the claimant can recover the amount of compensation from the owner and insurer of any of the vehicles involved in the accident. As the owner and insurance company of the another vehicle has not been made party in the case, the share of liability cannot be fixed by the Tribunal and insurer of one of the vehicles is liable to pay entire amount of compensation and after payment of the entire amount of compensation, it may get the share of its liability decided by filing a suit against the owner and insurer of the another vehicle. Though learned Tribunal found it the case of composite negligence, but fixed the liability of the insurer of one of the trucks bearing registration no. WB-23A-0136 to the extent of 50% deciding the share of the composite negligence of the two vehicles involved in the accident which is against the law. It is further submitted that the claimant happens to be mother of the deceased and being class one heir and dependent of the deceased, she has filed the claim petition and she is entitled to get entire amount of compensation, but the learned Tribunal has wrongly and illegally found the share of the appellant only to the extent of 50% due to non-joining of the father of the deceased in the claim petition. It is further submitted that the deceased was major and he was aged about 18 years at the time of accident, so the age of the deceased and not the age of the mother of the deceased must be considered in working out the amount of compensation. It is further submitted that the deceased was major and he was aged about 18 years at the time of accident, so the age of the deceased and not the age of the mother of the deceased must be considered in working out the amount of compensation. As per the age of the deceased and 2nd Schedule of the Motor Vehicles Act, the multiplier of 16 must be applied to work out the amount of the compensation. 8. On the other hand, learned counsel for respondent no.2 advocating the correctness and validity of the impugned judgment and award has submitted that the amount of compensation decided by the learned Tribunal is correct, adequate and proper and the claimant is entitled to get only 50% of the damages from the insurer of the Truck No. WB-23A-0136. However, she may recover the rest amount of damages from the insurer of another vehicle involved in the accident by filing a case against it. It is further submitted that as the deceased was bachelor, 50% of the income of the deceased should be deducted towards the personal expense of the deceased while assessing the loss of dependency. 9. From perusal of the record, it appears that admittedly there was collision between two trucks bearing registration nos. WB23A-0136 and NL-02D-6414 and the deceased was khalasi of the truck bearing registration no. WB-23A-0136 and he was aged about 18 years at the time of accident. Learned counsel for the respondent no.2 contested the income of the deceased submitting that there is no evidence regarding getting the aforesaid salary and khuraki by the deceased. As no evidence has been adduced by the appellant in substantiation of the income of the deceased and AW-1 has stated that the deceased used to get salary of Rs. 2500/- per month, hence learned Tribunal has assessed the income of the deceased to the tune of Rs. 2500/- per month which in my considered opinion appears to be just and proper. As the deceased was bachelor, hence 50% of the aforesaid income would be deducted towards personal expenses of the deceased which he would have made had he been alive. On deduction of the aforesaid personal expense of the deceased, the loss of dependency comes to the tune of Rs. 1250/- per month i.e. Rs. 15000/- per annum. As the deceased was khalasi and used to get salary of Rs. On deduction of the aforesaid personal expense of the deceased, the loss of dependency comes to the tune of Rs. 1250/- per month i.e. Rs. 15000/- per annum. As the deceased was khalasi and used to get salary of Rs. 2500 per month, hence he will be deemed to be salaried person and as per the verdict rendered by Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors, (2017) 4 PLJR 261, 40% of the aforesaid income i.e. Rs. 6000/- is awarded as future prospect. On addition of the aforesaid two heads, loss of income comes to the tune of Rs. 21,000/- per annum. As the deceased was aged about 18 years at the time of accident as evident from the post mortem report (Exhibit-4) hence as per the 2nd schedule of the Motor Vehicles Act, multiplier of 16 is adopted to work out the amount of compensation. On applying the aforesaid multiplier, the amount of compensation comes to the tune of Rs. 3,36,000/-. Besides the aforesaid heads of compensation, I also think it proper and adequate to award Rs. 2,000/- towards funeral expense and Rs. 2500/- towards loss of estate as provided under the aforesaid schedule. On addition of the aforesaid heads of compensation, the amount of compensation comes to the tune of Rs. 3,40,500/-. As the appellant happens to be class one heir being mother of the deceased and she has filed the aforesaid claim petition claiming herself to be dependent of the deceased, hence she is entitled to get the aforesaid amount of compensation. The amount of compensation is not liable to be deducted by half due to not making the father of the deceased as party in the case as firstly father of the deceased happens to be second class heir and secondly as deceased was aged about 18 years at the time of accident, hence father of the deceased must have his own income by that time and he cannot be considered as dependent of the deceased. 10. Admittedly, aforesaid accident took place due to collision between the aforesaid two trucks. 10. Admittedly, aforesaid accident took place due to collision between the aforesaid two trucks. Hence, it is a case of composite negligence and in case of composite negligence, there is joint and several liabilities of both the tortfeasors involved in the accident and it is upon the claimant to realize the compensation either from both the tortfeasors or from any of them. It is not necessary for the claimant to make both the tortfeasors party in the case. As the owner and insurer of the another truck has not been made party in the case, it would not be proper and justifiable for the Tribunal to determine the extent of composite negligence of the drivers of the aforesaid two trucks. Respondent no.2 should be left, in case it so desires, to sue the owner and insurer of the other truck in independent proceeding after passing of the award. 11. Hon'Ble Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, (2015) 9 SCC 273 has been pleased to rule that in the case of composite negligence, 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. 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. 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 the 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 the main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 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. 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. 12. In the facts and circumstances of the case, respondent no.2 is directed to pay the aforesaid amount of compensation to the tune of Rs. 3,40,500/- after deducting the amount, if any paid along with the interest at the rate of 8% per annum as awarded by the learned Tribunal and not assailed by the appellant from the date of filing claim petition till its realisation to the claimants within two months from the date of this judgment. 13. Accordingly, this appeal is allowed. However, respondent no.2 may recover the sum from the insurer of another truck involved in the accident after making whole payment to the extent it has satisfied the liability of the other by getting its extent of composite negligence decided by filing separate suit against him.