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2021 DIGILAW 353 (RAJ)

Rasaal Kanwar v. Devendra Singh

2021-02-11

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. The present appeal has been preferred against the judgment and award dated 21.08.2006 passed by Additional District and Sessions Judge (Fast Track No.4) M.A.C.T. Cases, Jodhpur in MAC Case No.218/2005 whereby the learned Tribunal awarded a sum of Rs.2,21,500/- as compensation to the appellants with an interest @ 7.5% p.a. on account of death of Rajendra Singh @ Raju Singh who died in the accident which occurred on 07.08.2004. 3. Brief facts of the case are that on 07.08.2004, Rajendra Singh @ Raju Singh and Devi Singh while going to Osian from Jodhpur on a Hero Honda Motorcycle bearing Registration No.RJ-07-5M0339 met with an accident caused by a Jeep bearing Registration No.RJ-19-lC-4508. Rajendra Singh @ Raju Singh was a pillion rider. In the accident, he died and in the circumstances, a claim petition was preferred. Learned Tribunal after framing the issues, evaluating the evidence available on record, hearing learned counsel for the parties allowed the claim petition of the appellants vide its judgment and award dated 21.08.2006 and awarded a sum of Rs.2,21,500/- as compensation to the appellants. 4. Learned counsel for the appellants submits that the finding arrived at by the Tribunal on issue No.1 is erroneous on account of the fact that deceased Rajendra Singh @ Raju Singh was a pillion rider on the motorcycle and the motorcycle was being driven by Devi Singh, therefore, the compensation awarded could not have been reduced by 50%. In support of his contention, learned counsel for the appellants relies upon the judgment of the Hon'ble Supreme Court in the case of Khenyei V/s New India Assurance Co. Ltd. reported in (2015) 9 Supreme Court Cases 273. He further submits that the award has not been computed correctly as at the time of the accident, the age of the deceased was 22 years, therefore, multiplier of 18 is required to be applied while calculating the amount. Further, the amount of compensation is required to be recomputed in the light of judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (2017) SC 5157. Further, the amount of compensation is required to be recomputed in the light of judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (2017) SC 5157. Since there are four family members who were dependents on deceased Rajendra Singh @ Raju Singh, therefore, deduction was required to be made to the extent of 1/4 instead of 1/3 in the judgment and award passed by the tribunal. In the circumstances, the counsel prays that the amount of compensation in the present case is required to be reassessed and enhanced suitably. 5. Per contra, learned counsel for the respondent Insurance Company submits that while calculating the compensation in the present case, learned Tribunal evaluated the evidence brought on record in its correct perspective and awarded a just compensation in the present case. The counsel, however, is not in a position to dispute the fact that the deceased was a pillion rider, therefore, deduction of the amount to the extent of 50% is dehors the law. He is also not in a position to dispute the fact that calculation is to be undertaken as per the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (supra). 6. I have considered the submissions made at the bar. 7. In view of the fact that the motorcycle was being driven by Devi Singh and the deceased Rajendra Singh @ Raju Singh was sitting at the back i.e. he was a pillion rider. The amount in the present case on account of death of pillion rider was not required to be reduced to the extent of 50% on account of contributory negligence as it was a case of composite negligence. The Hon'ble Supreme Court Hon'ble Supreme Court in the case of Khenyei V/s New India Assurance Co. Ltd. (2015) 9 Supreme Court Cases 273 has held as under:- "15. There is difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident 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 due to the outcome of combination of negligence of two or more other persons. This court in TO. This court in TO. Anthony v. Karvarnan has held that in the case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor it is necessary for the court to determine the extent of liability of each wrongdoer 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: (SCC pp. 750-51, Paras 607) "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. In such a case, each wrongdoer, is jointly and severally liable to be injured for payment of the entire damage 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 noris 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. 7. Therefore, when two vehicles are involved in an accident and one of the drivers claims compensation from 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. 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"-. 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, appointment 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. 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". 8. Thus, in the light of judgment of the Hon'ble Supreme Court in the case of Khenyei (supra), no deduction is required to be done on account of contributory negligence in the present case as it is a case of composite negligence, therefore, the claimants will be entitled for entire amount assessed in the following paras. 9. The amount of compensation is recomputed in the light of judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (supra) and therefore, compensation in the present case is recomputed as under while maintaining the monthly income of the deceased as Rs.3000/-. For future prospects :- 40% of Rs.3000/-(Income of deceased) Rs.1200/- Rs. 3000/- + Rs. 1200/- Rs. For future prospects :- 40% of Rs.3000/-(Income of deceased) Rs.1200/- Rs. 3000/- + Rs. 1200/- Rs. 4200/- Amount to be deducted as spent on himself. Rs. 4200/- / 1/4 = Rs. 1050/- Dependence Amount Rs.4200 - Rs. 1050 = Rs. 3150/- The age of deceased was 22 years therefore, a multiplier of 18 will be used. (I) Compensation due to death 3150 x 12 x 18 Rs. 6,80,400/- (II) 10% increase as per judgment of Pranay Sethi for conventional heads. Rs. 77,000/- Total Rs. 7,57,400/- Less- Amount awarded by the Tribunal Rs. 2,21,500/- Enhanced amount Rs. 5,35,900/- 10. In view of above discussions, the present appeal is partly allowed. The respondent Insurance Company is directed to pay the amount of Rs. 5,35,900/- (Rupees : Five Lakh Thirty Five Thousand and Nine Hundred Only) to the appellants within a period of six weeks from today. The enhanced amount shall carry interest @ 7.5% p.a. till the same is paid.