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2023 DIGILAW 565 (AP)

Sesham Guravamma v. Dondapati Nageshwara Rao

2023-03-16

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order dated 02.11.2007 in M.V.O.P. No.457 of 2004 passed by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge, (Fast Track Court), Ongole(for short "the tribunal"), the claimants preferred this appeal questioning the correctness and the compensation awarded by the Tribunal. 2. For convenience's sake, the parties will hereinafter be referred to as arrayed in the M.V.O.P. 3. It is a claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘M.V.Act’) claiming compensation of Rs.3,92,000/-on account of the death of Sesham Rosaiah (hereinafter referred to as 'the deceased') in the motor vehicle accident that occurred on 06.03.2004. 4. The claimant's case is that on 06.03.2004, the deceased and some others boarded the goods Auto bearing No. A.P. 27 V 2629, and when the Auto came near Aravapallipadu at about 04.30 AM, the Auto bearing No.AP07 X 5370, which came in the opposite direction, dashed against the Auto where the deceased travelled. As a result, the deceased and another died in the accident. 5. The 1st respondent, the owner of Auto bearing No.AP07 X 5370 filed a written statement, denied the earnings of the deceased and pleaded that his driver was not at all negligent and he was driving the Auto slowly, and the other Auto driver was driven rashly and negligently and caused the accident. 6. The 2nd respondent, the insurer of the 1st respondent’s Auto, filed a written statement denying the age, income, avocation and health condition and contended that the Auto bearing No.AP07 X 5370 was not driven in a rash and negligent manner. It also denied the liability to pay compensation and pleaded that the driver did not have a valid driving licence. The vehicle was not insured with respondent No.2-insurance company. 7. The 3rd respondent, the owner of Auto bearing No.AP27 V 2629 filed a written statement contending that the deceased was not earning Rs.100/-per day by selling fruits and eatables and pleaded that the deceased was an idle man and his driver was not at all at fault and that the accident occurred due to negligence of another driver. 8. The 4th respondent, the insurer of the 3rd respondent’s Auto, filed a written statement and an additional written statement, 3rd contending that the Auto of the respondent was a goods vehicle. The deceased was travelling in a goods vehicle. 8. The 4th respondent, the insurer of the 3rd respondent’s Auto, filed a written statement and an additional written statement, 3rd contending that the Auto of the respondent was a goods vehicle. The deceased was travelling in a goods vehicle. So, there is no contract of insurance between the 3rd respondent and 4th respondent to cover the risk of passengers in a goods vehicle, and the compensation claimed is excessive. 9. Based on the pleadings, the Tribunal framed relevant issues. Before the Tribunal, on behalf of the claimants, PW.1 got examined and marked Exs.A.1 to A.5. On behalf of 4th the respondent, RW.1 was examined and marked Ex.B.1. 10. After considering the evidence on record, the Tribunal held that the accident had occurred due to a head-on collision of both the Autos of respondents 1 and 3; and awarded compensation Rs.2,77,000/-together with interest @ 7.5% per annum from the date of filing of the petition against the respondent Nos.1 to 3 and dismissed the claim against 4th respondent; respondents 1 and 2 are directed to deposit the compensation of Rs.1,38,500/-and 3rd respondent is required to deposit the remaining compensation of Rs.1,38,500/-within 30 days. 11. I have heard the arguments of the learned counsel for both parties. 12. Learned counsel for appellants/claimants contends that the Tribunal should have seen that accident occurred between two vehicles head-on collision and Award should have been given against the 4th respondent also as both drivers of the vehicles are responsible for the accident; the appellants further contended that the income of the deceased would not be less than Rs.3,000/-per month. 13. Per contra, the learned counsel for the respondents supported the findings and observations of the Tribunal. 14. Now the point for determination is: I. Whether the Tribunal erred in not fixing the liability on the 4th respondent and fixing the liability against respondents 1 and 2 at 50% and against the 3rd respondent at 50%? II. Whether the quantum of compensation fixed by the Tribunal is just and reasonable? POINT NO.I: 15. Admittedly, this petition was filed under section 163-A of the M.V.Act, where the claimants are not required to establish the occurrence of the accident due to the rash and negligent actions of the drivers of both autos. II. Whether the quantum of compensation fixed by the Tribunal is just and reasonable? POINT NO.I: 15. Admittedly, this petition was filed under section 163-A of the M.V.Act, where the claimants are not required to establish the occurrence of the accident due to the rash and negligent actions of the drivers of both autos. Still, mere proof of the event of an accident due to the use of the motor vehicle is sufficient in view of section 163-A of the Act. 16. The claimant's case that the deceased died from injuries sustained in the accident is not disputed. The said fact is established through Ex.A1-certified copy of F.I.R., Ex.A2-certified copy of inquest report, Ex.A3-certified copy of postmortem certificate and Ex.A5-certified copy of charge sheet. The Tribunal framed the first issue as to whether the accident occurred due to rash and negligent driving of drivers of both offending Autos. The Tribunal answered the issue by holding that due to the head-on collision of Autos of respondents 1 and 3, the deceased received injuries and died in the motor vehicle accident. The said finding given by the Tribunal is not disputed by any respondents. The Tribunal’s above finding has attained finality. Given the same, this Court views that the evidence relating to the manner of the accident need not be referred to in detail. 17. As seen from the grounds of appeal and submissions made on behalf of appellants/claimants, the main grievance of the claimants is that it is an accident that occurred as a result of a head-on collision of two vehicles. The Award should have been passed against the 4th respondent insurance company, as both the drivers of the autos are responsible for the accident. As seen from the Tribunal's order, the claim petition is dismissed against the 4th respondent. The Tribunal has recorded its reasons for dismissing the petition against the 4th respondent. It is not in dispute that the 4th respondent is the insurer of the offending Auto belonging to the 3rd respondent bearing No.AP27V 2629. It is not in dispute that the Auto of the 1st respondent was insured with the 2nd respondent. The Tribunal found that both the autos had a head-on collision. In that collision, the deceased received injuries and died, so both drivers equally contributed to the accident. Admittedly, the deceased was travelling in the Auto of 3rd respondent, a goods auto. It is not in dispute that the Auto of the 1st respondent was insured with the 2nd respondent. The Tribunal found that both the autos had a head-on collision. In that collision, the deceased received injuries and died, so both drivers equally contributed to the accident. Admittedly, the deceased was travelling in the Auto of 3rd respondent, a goods auto. The 4th respondent relied on Ex.B1-policy. The evidence of RW.1 shows that the Ex. B1 policy did not cover passengers' risk carried in the goods auto. Ex.B1 shows that the policy was in subsistence at the time of the accident. Ex.B1 policy does not show it covers the risk of passengers travelling in the Auto. It is not the claimants' case that the deceased was travelling in the Auto as an employee. In the facts of the case, this Court views that the tribunal finding cannot be found fault with. 18. As seen from the Award, the Tribunal fixed the liability on respondents 1 to 3. It is observed that respondents 1 and 2 shall pay 50% of the compensation amount, and the 3rd respondent shall pay 50% of the remaining compensation amount. It is relevant to note that the accident occurred due to rash and negligent driving of both the drivers of the autos. To establish their negligence, the claimants relied on oral evidence and the contents of the Ex.A5-charge sheet. Ex.A5 charge sheet shows that due to the head-on collision of two autos, the deceased received injuries and died. 19. The claimant's counsel contends that the observation made by the Tribunal that respondents 1 to 3 are jointly and severally liable to pay the compensation amount, but the Tribunal apportioned the liability by fixing 50% of compensation against respondents 1, 2. The remaining 50% is apportioned against the 3rd respondent, though it occurred due to the composite negligence of both drivers of the offending autos involved in the accident. 20. In a decision Khenyei Vs. New India Assurance Co. Ltd. & Ors., (2015) 9 SCC 273 , wherein the apex court observed that: 14. There is a difference between contributory and composite negligence. 20. In a decision Khenyei Vs. New India Assurance Co. Ltd. & Ors., (2015) 9 SCC 273 , wherein the apex court observed that: 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 a combination of the negligence of two or more other persons. In T.O. Anthony v. Karvarnan & Ors. [ 2008 (3) SCC 748 ] it held that in contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. The 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. It further held that the same analogy could be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is the determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailer-truck, which was not insured by the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being the insurer of the bus after making payment to the claimant to recover from the owner of the trailer truck the amount to the extent mentioned above in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings, but the remedy would be to file another suit or appropriate proceedings following the law. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings, but the remedy would be to file another suit or appropriate proceedings following the law. What emerges from the discussion above is as follows : (i) 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 a liability of joint tortfeasors is joint and several. (ii) 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. (iii) 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, determining the extent of negligence between the joint tortfeasors is only for their inter se liability so that one may recover the sum from the other after making the whole 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. (iv) 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. 21. In the decision of Union of India Vs. United India Insurance Co. Ltd. and others, 1997 3 RLW(Raj) 476; 1997 0 Supreme(Raj) 768;, wherein the Apex Court held that: (10). There is a well-known principle in the law of torts called the `doctrine of identification or `imputation. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or an employee of the plaintiff where the employee is acting in the course of employment. There is a well-known principle in the law of torts called the `doctrine of identification or `imputation. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or an employee of the plaintiff where the employee is acting in the course of employment. But, it has also been held in Mills vs Armstrong (4) (also called the Bernina case) that the principle does not apply to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to the passenger. (Halsbury's laws of England 4th Ed. 1984 Vol. 34, page 74) (Ratanlal and Dhirajlal, Law of Torts (23rd Ed. 1997, p.511) (Ramaswamy Iyer, Law of Torts, 7th Ed. p.477).The Bernina case in which this principle was laid in 1888, related to passengers in a steamship. In that case, a member of the crew and a passenger in the ship Bushire drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigator's negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in later cases, to passengers travelling in a motor vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers, on the other hand, is to be `identified to fasten the latter with any liability for the formers contributory negligence. There cannot be a fiction of the passenger sharing a `right of control of the operation of the vehicle, nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Professor and Keeton on Torts, 5th Ed., 1984 p. 521-522). It is, therefore, clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved -could not plead contributory negligence on the part of the passengers of the vehicle. A passenger is not treated as a backseat driver. (Professor and Keeton on Torts, 5th Ed., 1984 p. 521-522). It is, therefore, clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved -could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent -the driver and owner of the bus and, if proven, the railways -can all be joint tortfeasors. 22. In light of the above legal position, this Court views that though the Tribunal is justified in the determination of inter se liability of negligence to the extent of negligence of 50% to the offending auto owner and its insurer, i.e., respondents 1 and 2; and 50% to the 3rd respondent, who is the owner of the goods auto bearing No.AP27 V 2629, in which the deceased travelled, it is not justified to direct respondents 1 and 2 to deposit Rs.1,38,500/- with interest and direct the 3rd respondent to deposit Rs.1,38,500/-with interest from the date of the petition. As it is a case of composite negligence, the claimants are entitled to recover the amount from both or any one of the joint tortfeasors as the liability of joint tortfeasors is joint and several. Determining the extent of the negligence between the joint tortfeasors is only for inter se liability so that one may recover the sum from the other after making the whole payment to the claimants to the extent it has satisfied the liability of the other. This Court finds that the owners of the Autos, i.e., respondents 1 and 3 and the insurer of respondent No.1's Auto being joint tortfeasors, are jointly and severally liable to pay the compensation. However, in light of the observations made, one may recover the sum from the other respondent after completing the whole payment to the claimants to the extent it has satisfied the liability of the other. Accordingly, this point is answered. POINT NO.II: 23. It is the evidence of PW.1 that her husband, i.e., the deceased, used to sell eatables like ice cream, fruits etc., and earn Rs.100/-per day. But the Tribunal fixed the deceased's earnings at Rs.70/-per day. This Court views that there is no specific evidence concerning the deceased's income. Accordingly, this point is answered. POINT NO.II: 23. It is the evidence of PW.1 that her husband, i.e., the deceased, used to sell eatables like ice cream, fruits etc., and earn Rs.100/-per day. But the Tribunal fixed the deceased's earnings at Rs.70/-per day. This Court views that there is no specific evidence concerning the deceased's income. In a case like this, where there is no clear evidence as to the income of the deceased, the Apex Court, in Lakshmi Devi and others Vs. Mohammad Tabber, 2008 ACJ 488 held that, in today’s world, even common labour can earn Rs.100/-per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/-. But the Tribunal wrongly considered the income of the deceased notionally at Rs.21,000/-per annum. 24. In the case of R.K.Malik and others vs Kiran Paul, 2009 A.C.J. 1924 (S.C.), the Apex Court has held in paragraph 32 that denying compensation towards future prospects seems unjustified. Accordingly, the Apex Court awarded compensation for future prospects in a claim under section 163-A of the M.V.Act, 1988. Following the same, the annual earnings of the deceased, including future prospects, can be assessed. 25. In National Insurance Company Ltd. vs Pranay Sethi, (2017) 16 SCC 680 the Apex Court, at paragraph 61, held that, (iv) If the deceased was self-employed or on a fixed salary, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary computation method. The established income means the income minus the tax component. 26. Accordingly, this Court assessed the monthly earnings, including future prospectus of the deceased at Rs.4,200/-(Rs.3,000/-+ Rs.3,000/-x 40%). 27. Accordingly, this Court assessed the monthly earnings, including the future prospectus of the deceased, at Rs.4,200/-(Rs.3,000/-+ Rs.3,000 x 40%). 28. As seen from the order of the Tribunal, this Court views that the Tribunal has correctly deducted the 1/3rd earnings of the deceased towards personal and living expenses. After the deduction of 1/3rd of the earnings as observed above, the annual earnings, including the future prospectus of the deceased after deducting personal expenses, would arrive at Rs.33,600/-(i.e., Rs.50,400/-(-) Rs.50,400/-(x) 1/3). 29. After the deduction of 1/3rd of the earnings as observed above, the annual earnings, including the future prospectus of the deceased after deducting personal expenses, would arrive at Rs.33,600/-(i.e., Rs.50,400/-(-) Rs.50,400/-(x) 1/3). 29. The Tribunal has taken the age of the deceased as 25 years. The said finding of the Tribunal is not disputed. EX.A2-inquest report and Ex.A3-postmortem certificate also show the same. Thus, the Tribunal is justified in fixing the age of the deceased at 25 years. 30. As seen from the order of the Tribunal, it has applied a multiplier by considering the age of the deceased and using the multiplier 18'. 31. Per the second schedule for compensation for third-party fatal accidents/injury case claims, the multiplier 17' will apply to the age group of above 20 but not exceeding 25 years. The age of the deceased is 25 years as of the date of the accident, so this Court considered the multiplier 17' in calculating the loss of income of the deceased. Therefore, the loss of dependency would arrive at Rs.5,71,200/-(Rs.33,600/-x 17). 32. This Court views that the claimants are entitled to compensation of Rs.2,000/-under the head of funeral expenses, Rs.5,000/-under the head of loss of consortium and Rs.2,500/-under the head of loss of estate. In all, the claimants are entitled to the compensation as detailed below: Towards loss of dependency Rs. 5,71,200/- Towards funeral expenses Rs. 2,000/- Loss of Estate Rs. 2,500/- Loss of consortium Rs. 5,000/- Total: Rs. 5,80,700/- 33. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Company Limited and another, (2011) 10 SCC 756 the Apex Court while referring to Nagappa v. Gurudayal Singh, 2003 A.C.J. 12 (SC) 274 held as under: “It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/-only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident.” 34. In Ramla Vs National Insurance Co. Ltd., CIVIL APPEAL No.11495 OF 2018 the Apex Court held no restriction to award compensation exceeding the amount claimed. Given the principle laid down by the Apex Court, the claimants are entitled to Rs.5,80,700/-exceeding the claimed amount. In Ramla Vs National Insurance Co. Ltd., CIVIL APPEAL No.11495 OF 2018 the Apex Court held no restriction to award compensation exceeding the amount claimed. Given the principle laid down by the Apex Court, the claimants are entitled to Rs.5,80,700/-exceeding the claimed amount. However, the claimants shall pay the requisite court fee over and above the compensation awarded. 35. Following the principles laid down by the Apex Court in a catena of judgments, this Court can safely conclude that the claimants are entitled to get more than what has been claimed. Further, the Motor Vehicles Act is a beneficial piece of legislation where the interest of the claimants is a paramount consideration. The Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent. Accordingly, this point is answered. 36. As a result, the appeal is allowed in part without costs, enhancing the compensation from an amount of Rs.2,77,000/-to Rs.5,80,700/-(Rupees Five Lakhs Eighty Thousand Seven Hundred only) against respondents 1 and 2, with the same rate of interest and awarded by the Tribunal, i.e., at 7.5% per annum. The claimants are directed to pay the requisite court fee on enhanced compensation over and above the compensation amount claimed. Respondents 1 and 2 are directed to deposit the enhanced compensation amount, excluding the amount deposited, if any, within two months of receiving a copy of this order. The deceased's wife, i.e., claimant No.1, is entitled to 50% of the enhanced compensation amount with accrued interest thereon. In contrast, claimants No.2 and 3 are entitled to each 25% of the enhanced compensation amount with accrued interest. On deposit, the 1st claimant is permitted to withdraw her share upon filing an appropriate application before the Tribunal as per the terms of the order passed by the Tribunal. Claimants 2 and 3 are permitted to withdraw their respective shares after attainment of majority, in the meantime, the amount awarded to claimants 2 and 3 shall be kept in fixed deposit till they attain majority. The apportionment made by the Tribunal with regard to the compensation amount awarded by it is unaltered. 37. Since the appeal against respondent No.3 is dismissed for default, as such, the liability of respondent No.3 can be fixed only to the extent of the compensation awarded by the Tribunal. The apportionment made by the Tribunal with regard to the compensation amount awarded by it is unaltered. 37. Since the appeal against respondent No.3 is dismissed for default, as such, the liability of respondent No.3 can be fixed only to the extent of the compensation awarded by the Tribunal. The appeal against respondent No.4 is dismissed, but in the facts of the circumstances of the case without costs. 38. Miscellaneous petitions pending, if any, in this appeal shall stand closed.