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2018 DIGILAW 1354 (GAU)

Jyoti Brahma v. State of Assam

2018-09-14

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard learned counsel for the appellant and the learned counsel for the State Respondent nos.1 and 2. 2. The present appeal was preferred against the Award dated 15.12.2004 passed in MAC Case No. 735/2000 by the learned Motor Accident Claims Tribunal, Kamrup. Briefly stated the case of the claimant is that on 22.12.1999 at about 12 PM one Lakhindar Brahma was proceeding in a vehicle No. AS-30-1266 from Guwahati towards Haflong and at that time the said vehicle dashed against another truck coming from the opposite direction and as a result said Lakhindar sustained grievance injury on his person and subsequently he died in the hospital. The mother of the said deceased Lakhindar filed a claim petition before the learned Tribunal praying for compensation on account of death of her son stating that wife of the deceased had left the house after the incident. 3. The learned Tribunal issued notice to the owner, driver and insurer of the aforesaid vehicle and they contested the case by filing W.S., contending interalia that the offending vehicle was a LPG truck which fled away in the darkness of the night. It is submitted that the accident took place due to the said unknown truck which fled away but not for the fault of the driver of 407 Truck No. AS-30-1266 and as such the answering opposite-parties are not responsible for the said incident. By examining the case, the learned Tribunal framed the necessary issues and after examining the claimant and her witnesses came to the findings that the son of the claimant died in the said accident for the fault of both the vehicles and one of which is police vehicle and other vehicle could not be identified. It was also found that due to the involvement of both the vehicles the liability of the police vehicle will be to the extent of 50%. Accordingly, on the calculation being made on the monthly income of the deceased at Rs. 4,000/- per month and taking the multiplier as 13 after deducting the 1/3rd income the learned Tribunal awarded a sum of Rs. 4,36,000/- to the claimant, directing the insurance company of the truck to pay the 50% of the said amount i.e. Rs. 2,18,000/-. Accordingly, on the calculation being made on the monthly income of the deceased at Rs. 4,000/- per month and taking the multiplier as 13 after deducting the 1/3rd income the learned Tribunal awarded a sum of Rs. 4,36,000/- to the claimant, directing the insurance company of the truck to pay the 50% of the said amount i.e. Rs. 2,18,000/-. The learned Tribunal also observed that as the wife of the deceased (the present appellant) live separately so she should not be deprived of her legitimate rights from getting compensation and accordingly awarded Rs. 1,00,000/- to the parents of the deceased and balance amount was directed to be given to the wife of the deceased i.e. the present appellant. 4. The wife of the deceased i.e. the present appellant was not aware of the said case as she was not made party to the claim case and subsequently she came to know about the award while a part of the amount was given to her. Subsequently with the leave of the Court the wife of the deceased has come forward with the present appeal for enhancement of the award on the ground that assessment of the said award is not proper inasmuch as the learned Tribunal has not taken the proper multiplier which is Rs. 17 as per the age of the deceased who is 29 years of age and also the fact that the appropriate amount under the head Consortium as well as Future Prospect of the deceased is not awarded by the learned Tribunal to which she is entitled. 5. On the basis of aforesaid prayer for enhancement in the present appeal the respondent including the original claimant was notified but the claimant Kumuda Barman/respondent no.4 did not come out to contest the matter despite service of notice. On the other hand the State Respondents contested the case before this Court. 6. Heard the submission of learned counsel for both the parties and also perused the LCR. Obviously the present appellant was not a party to the said claim case but her legal rights and entitlement was recognised by the learned Tribunal for which, the learned Tribunal has awarded portion of her compensation in the said award. That being position, the issue that she was not a party to the said case, her right to prefer the appeal against the said award cannot be defeated. That being position, the issue that she was not a party to the said case, her right to prefer the appeal against the said award cannot be defeated. Accordingly, this Court is of the opinion that the present appeal is maintainable even if the claimant-appellant was not a party to the said claim case. 7. On perusal of the evidence-on-record it is discernible that the claimant and her witnesses has stated about the involvement of the two vehicles in the said incident and the another vehicle which was involved in the said accident fled away for which they could not be made a party in the claim case. Learned Tribunal despite holding involvement of two vehicles has erroneously come to the findings that the liability of the vehicle where the deceased was travelling is to the extent of 50% only. The learned counsel for the appellant has relied and referred the decision of T.O. Anthony v. Karvarnan and Others, (2008) 3 SCC 748 and also Khenyei v. New India Assurance Company Ltd., (2015) 2 TAC 677 (S.C.) wherein the difference between the composite negligence and the contributory negligence is dealt with. The para 14 of the observation of Khenyei v. New India Assurance Company Ltd. is quoted below: "14. There is a difference between contributory 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. This Court in T.O. Anthony v. Karvarnan and Others., (2008) 3 SCC 748 , has held that in 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 his 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. The relevant portion is extracted hereunder: 6. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his 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. The relevant portion is extracted hereunder: 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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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 wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong-doer 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 of 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 stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore, where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. Therefore, where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 8. Now in the present case the claimant had impleaded only the vehicle where the deceased was travelling and other vehicle could not be impleaded due to not having any particulars. In the light of the decisions mentioned above the claimant is entitled to such compensation from any of the vehicle as it is a case of composite negligence, not a contributory negligence. It has been found that learned Tribunal has not hold about contributory negligence on the part of the vehicle where deceased was travelling so as to arrive such decision. Accordingly, it can be now assumed and hold that the claimant is entitled to get the full compensation from the vehicle involved in the accident i.e. the vehicle No. AS-30-1266 where the deceased was travelling. 9. On the next it is to be seen that the income of the deceased was assessed on the basis of his salary which is on proper perspective. But however considering the age of the deceased the multiplier should have been taken as 17 which was not taken. Further in terms of the decision in Smt. Sarla Verma and Others. V. Delhi Transport Corporation & Another., (2009) 6 SCC 121 and also in National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 10 JT 450 such a claimant is entitled for an award for the future prospect to the extent of 50% of the income of the deceased and other accounts that has been elaborated in the said decision. Taking into account of all above, following calculation is made to the extent of proper compensation that can be enhanced and to be awarded to the appellant. Monthly Income Rs. 4,000/- + 50% Future Prospect Rs. 2,000/- Total Rs. 6,000/- 1/3rd of the total income (-) as personal expenses Rs. 2,000/- So the Multiplicant is Rs. 4,000/- Total Compensation will be Rs. 4,000X12X17 Rs. 8,16,000/- Loss of Estate Rs. 15,000/- Loss of consortium Rs. 40,000/- Funeral Expenditure Rs. 15,000/- Total Rs. 8,86,000/- 10. Monthly Income Rs. 4,000/- + 50% Future Prospect Rs. 2,000/- Total Rs. 6,000/- 1/3rd of the total income (-) as personal expenses Rs. 2,000/- So the Multiplicant is Rs. 4,000/- Total Compensation will be Rs. 4,000X12X17 Rs. 8,16,000/- Loss of Estate Rs. 15,000/- Loss of consortium Rs. 40,000/- Funeral Expenditure Rs. 15,000/- Total Rs. 8,86,000/- 10. The appellant is entitled to the compensation amount as indicated above from the date of award dated 15.12.2004 @ 6% interest by deducting the earlier amount that is paid to the claimant. The respondent authority is hereby directed to deposit the said amount before the learned Tribunal within a period of 2 months from today. The appeal is accordingly allowed. Return the LCR.