ThroughV.C.).Mr. S v. Kulkarni
Legal Reasoning
(3) FA-447-2013-Corrected.odtdeceased was not contributor to cause of accident but mereoccupant of the car. Mr. Shaikh would further submit that theTribunal has overlooked contribution of the deceased to the familybeing housewife and assessed the compensation based on meagernotional income @ of Rs.3000/- per month. Even, nothing is addedby way of future prospects. As such, assessment of thecompensation itself was unjust.4.Mr. Kulkarni, learned Advocate appearing for respondentno.3 supports the award. He would submit that the accident inquestion took place in the year 2001. The deceased was travelingalongwith her husband in Maruti Car. The accident occurred dueto sole negligence on the part of the car driver. The CrimeNo.140/2017 was registered against him. He would further submitthat the assessment of the compensation is based on valuation ofmoney in the year 2001. As such, he urged to maintain the award.5.Having considered submissions advanced and after goingthrough the record and proceedings received from the Tribunal, itcan be gathered that there is no dispute as regards to theaccidental death of the mother of the appellants. The insurer ofthe Truck has already disbursed the compensation in terms of theaward passed by Tribunal. Therefore, only issue that requiresconsideration in this Appeal is as regards to the application ofprinciples of contributory negligence and reassessment of quantumof compensation.6.The deceased Pramila was occupant in the car that wasdriven by her husband-Vinodkumar. The car banged on rear sideof the Truck that was parked without signs and signals. TheTribunal after appreciation of evidence held that the Truck drivercontributed in the accident to the extent of 30%. Consequently, (4) FA-447-2013-Corrected.odtdirected respondents to pay 30% of the assessed compensation tothe claimants. Rest of 70% part of the assessed compensation isdeducted towards contribution of the car driver as owner andinsurer of the car were not made party to the petition. Theapproach of the Tribunal on this point appears to be erroneous.When the deceased was occupant of the car, the case would begoverned by the principles of composite negligence. In such cases,it is a choice of the claimants to recover the compensation from anyof the joint tortfeasor. In such cases, the claim for compensationcannot be defeated merely because one of the owner and insurer ofthe vehicles involved in the accident is not made party. TheSupreme Court while dealing with the similar issue in case ofKhenyei Vs. New India Assurance Co. Ltd.1 has advocated theapplicability of the principles of the composite negligence andentitlement of the claimants to recover the compensation withoutadding owners and insurer of all the vehicles involved in theaccident. The Supreme Court further observed in paragraph no.15as under:“15.There is a difference between contributory and compositenegligence. In the case of contributory negligence, a person whohas himself contributed to the extent cannot claimcompensation for the injuries sustained by him in the accidentto the extent of his own negligence; whereas in the case ofcomposite negligence, a person who has suffered has notcontributed to the accident but the outcome of combination ofnegligence of two or more other persons. This Court in T.O.Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held thatin case of contributory negligence, injured need not establishthe extent of responsibility of each wrong doer separately, nor isit necessary for the court to determine the extent of liability ofeach wrong doer separately. It is only in the case of contributorynegligence that the injured himself has contributed by hisnegligence in the accident. Extent of his negligence is requiredto be determined as damages recoverable by him in respect ofthe injuries have to be reduced in proportion to his contributorynegligence.”1(2015) 9 SCC 273. (5) FA-447-2013-Corrected.odt7.In that view of the matter, the award of the Tribunal appearsto be fallacious. Although, the Tribunal has concluded that theTruck driver was negligent to the extent of 30%, the liability of theowner and insurer of the Truck cannot be restricted applyingprinciples of contributory negligence in case of death of occupant ofvehicle. They would be bound to satisfy the entire award.8.So far as the quantum of the compensation is concerned,looking to the fact that the accident took place in the year 2001 thenotional loss of income @ Rs.3000/- per month appears to be justand proper considering the money valuation at the relevant time.However, the compensation will have to be reassessed by applyingcorrect principles of assessment of compensation as espoused incase of National Insurance Company Limited Vs. PranaySethi & Ors.2. It is incumbent to add 40% towards futureprospects. Even the claimants would be entitled for reasonablecompensation under non-pecuniary heads. Applying the aforesaidprinciples of assessment, the compensation can be reassessed intabular form as follows:Sr.No.HeadsAmount (Rs.)1Annual Income (Rs.3000 x 12)Rs.36,000/-2Addition of 40% towards future prospects(Rs.36,000/- + Rs.14,400/-) =Rs.50,400/-31/3rd deduction towards personal and livingexpenses. Rs.50,400 / 3 = Rs.16,800/-50,400 – 16,800/-Rs.33,600/-4Apply multiplier of ‘17’ (Rs.33,600 x 17)Rs.5,71,200/-5Rs.15,000/- to each claimant towards loss ofconsortium (Rs.15,000/- x 2) Rs.30,000/-6Rs.15,000/- towards funeral expensesRs.15,000/-7Rs.5000/- towards loss of estateRs.5000/-TOTALRs.6,21,200/-2(2017) 16 SCC 680. (6) FA-447-2013-Corrected.odt9.In that view of the matter, the appeal deserves to beallowed. Hence, following order: -ORDERi.The Appeal is partly allowed with proportionate cost.ii.The judgment and award dated 23.02.2010 passed by theMotor Accident Claim Tribunal, Parbhani in M.A.C.P. No.297/2006is modified.iii.The appellants are held entitled to the compensation ofRs.6,21,200/- (Rs. Six Lakhs Twenty One Thousand Two Hundredonly) from respondent nos.1 and 3 jointly and severely, (inclusive ofamount of ‘NFL’) alongwith interest at the rate of 6% pa. from thedate of filing of the claim petition till realization of the amount.iv.The amount already paid/deposited by the respondents inpursuance of the impugned judgment and award shall beappropriated.v.Award be drawn up on payment of deficit court fees.vi.On deposit of compensation amount, it be disbursed to theclaimants in equal proportion. (S. G. CHAPALGAONKAR)JUDGEDevendra/April-2024
Arguments
(1) FA-447-2013-Corrected.odt(This judgment is corrected as per speaking to minutes order dated 07.05.2024.)IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFIRST APPEAL NO.447 OF 20131.Vikrant S/o Vinodkumar Shukla,Age. 23 years, Occu. Education, R/o Near New Telephone Bhavan, Parbhani, Tq. & Dist. Parbhani.2.Vivek S/o Vinodkumar Shukla,Age. 19 years, Occu. Education, R/o Near New Telephone Bhavan, Parbhani, Tq. & Dist. Parbhani...Appellants (Ori. Claimants.)Versus1.Smt. Shardamma W/o B.G. Venkatechhalapathy,Age. Major, Occu. Household & Business and owner of lorryNo. KA-07-909, R/o Sri Vinayaka Roadways, No. 1419, 1st Main Road, Old Extension, Kollar, District Kollar, (Karnataka State).2.The New India Assurance Co. Ltd.,Dhembur, Mumbai Through its Branch at Yeshodeep Building, Shivaji Road, Parbhani.3.United India Insurance Co. Ltd.,Through it's Branch Manager, Dayawan Complex, Station Road, Parbhani...Respondents …Mr. Manjeet Shaikh h/f Mr. S. S. Deshmukh, Advocate for theAppellant.Mr. D. P. Deshpande, Advocate for Respondent No.2 (ThroughV.C.).Mr. S. V. Kulkarni, Advocate for Respondent No.3.… CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON : 18th APRIL, 2024.PRONOUNCED ON: 29th APRIL, 2024. (2) FA-447-2013-Corrected.odtJUDGMENT:- 1.With the consent of the parties, matter is taken up for finalhearing. 2.The appellants/original claimants have filed this Appealunder Section 173 of the Motor Vehicle Act impugning thejudgment and award dated 23.02.2010 passed by the MotorAccident Claim Tribunal, Parbhani in M.A.C.P. No.297/2006.3.Mr. Shaikh, learned Advocate appearing for theappellants/orig. claimants submits that the claimants weredependent on the deceased Pramila, who died in motor vehicleaccident dated 10.11.2001. At the time of accident, she wastraveling in Maruti Car bearing Registration No.MH-04-AX-1600alongwith her husband-Mr. Vinodkumar. The offending Truckbearing Registration No.KA-07-909 was parked without signal orindicators at the spot of the accident. The car driver could notnotice parked vehicle. Unfortunately, car rammed on rear portionof the parked Truck. Late Pramila suffered fatal injuries in thesaid accident. The appellant had, therefore, lodged claim seekingcompensation of Rs.5,00,000/- against owner and insurer of theTruck under Section 166 of the Motor Vehicle Act attributingnegligence against the Truck driver. The Tribunal partly allowedthe claim and directed respondent nos.1 and 2 to jointly andseverely pay the compensation of Rs.1,43,250/- to the claimantsalongwith interest at the rate of 6% per annum. He would submitthat although Tribunal has assessed the compensation to the tuneof Rs.4,77,500/-, owing to the finding of negligence of 30% againstthe Truck driver, the award is restricted to 30% of the assessedcompensation amount. He would, therefore, urge that the Tribunalhas wrongly applied principles of contributory negligence though