Rajinder Sharma v. Naresh Kumar & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. C.B.Goel, Advocate, Mr. Nitin Jain, Advocate and Mr. Manoj Sharma, Advocate for the owner of the canter. Mr. Gaurav Chopra, Advocate, F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 2 for the Insurance Company. Mr. M.P.S.Kohli, Advocate for driver of the tractor-trolley.

2.

3. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral)

All the four appeals relate to the same accident where the claims are for death of two females aged about 28 years and the claim petitions have been filed by their respective husbands and children. The case as narrated by the claimants adverted to a collision of truck trolley in which the deceased persons were travelling. The tractor trolley belonged to the respondent Nos. 5 to 7 in the petition and driven by one Gurmail Singh, the fourth respondent. There was evidence of PW-3, who was an eye witness to the accident and he had spoken about the fact that the tractor trolley was being driven rashly and negligently and dashed against a stationary truck which had been parked on the side of the road while he was attempting to overtake the same. At about the same time a canter truck driven by the first respondent and owned by the appellant before this Court struck against the tractor trolley. By the force of the impact the vehicle ran over the median and two persons suffered fatal injuries. The Tribunal found the appellant canter driver had been wholly responsible for the accident and the compensation determined by the Tribunal was F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 3 directed to be paid by the owner and the canter truck.

Learned counsel appearing on behalf of the appellant contends that the negligence was wholly to be attributed only to Gurmail Singh, the driver of the tractor trolley for it was the collision with a stationary truck that was the cause for the accident. The two deceased persons had got tossed about by virtue of its collision with the stationary truck and by the time the canter struck against the tractor trolley, the deceased persons were not in the trolley and they had already received fatal injuries.

The case has to be decided only on the eye witness account of PW-3 for both the drivers of the tractor trolley and the canter have carefully avoided coming into the Court to give their own versions about the accident. The evidence of PW-3 points out definitely to the negligence of the tractor trolley in striking against a stationary truck from behind which was supposed to be standing on the left side of the road due to some mechanical break down. He would add that when the tractor trolley was in the process of crossing the said truck the canter belonging to the appellant being driven rashly and negligently struck against the tractor trolley. The impact was such that the latch of the trolley got broken from the tractor but the trolley remained in its lane. The driver of the truck stopped his canter after covering a distance of 25 yards and thereafter ran away from the spot after leaving the vehicle. He also says when he was cross examined by the counsel for the driver of the truck that the speed of F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 4 the tractor trolley was very high and only due to this reason he could not see the tractor trolley from behind to the place of accident. The attempt was therefore, to elicit that the witness PW-3 who was himself going on a scooter could not overtake the tractor trolley for it was going faster than the scooter. I cannot take the view, in the way that the Tribunal has done by casting the liability wholly on the driver of the canter for the accident. I would see the responsibility for the accident to be placed both on the driver of the tractor trolley and the driver of the canter. I cannot take the argument of the learned counsel appearing for the appellant that the accident took place only by the negligence of the tractor trolley. On the other hand, I would place the burden equally on both of hem.

As far as claimants are concerned, it was a case of composite negligence. It would have been possible for the claimants to maintain the case against the owners of both the vehicles or at their option against any one of them for the law recognises the liability of the tort feasor to be joint and several. The issue of apportionment is only a matter of dispute between the tort feasors and shall not in any way affect the right of a person who has come by harm or the persons claiming through such affected persons. I would therefore, find the entitlement of the claimants to be available against the owner of the tractor trolley as well as the owner of the canter. This liability shall be joint and several as far as the claimants are F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 5 concerned and amongst claimants themselves, the liability shall be in equal measure.

There are two appeals seeking for enhancement of compensation. The deceased persons were said to be farm workers and the Tribunal took the respective income to be Rs. 2,100/-, deducted 1/3rd towards personal expenses and adopted a multiplier of 16 and in total, the Tribunal has awarded a compensation of Rs. 2,68,800/-. I would accept the contention of the learned counsel appearing for the owner of the canter that there was no evidence that they had income through out the year and the plea for enhancement is therefore, not tenable. While contention on behalf of the claimants is that they were earning more than Rs. 3,000/- per month, learned counsel reads the evidence of PW-4 to say that they were housewives and used to work in fields for barely 15 days in six months and they would earn Rs. 100/- per day, when they worked. The suggestion was therefore, that they had employment for a very short period in a month and therefore, their income to be taken as Rs. 2,100/- is itself high. It has now come by decision of the Hon'ble Supreme Court that the courts are bound to quantify appropriate compensation even for householder's services in Arun Kumar Aggarwal and another vs. National Insurance Company Ltd. (2010) RAJ 262. The Hon'ble Supreme Court approved the decision of the Division Bench of the F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 6 Madras High Court in National Insurance Company Ltd. vs. Minor Deepika(2009) 6 MLJ 1005 that took the wife's contribution as 50% of the husband's earning. In this case, the contention was that the respective husbands were themselves agricultural labourers earning about Rs. 3,000/-. If a principle of contribution of a householder were to be taken as 50% of what the husband earns, then perhaps we are looking for dispensation of providing for an income which is even less than what is determined by the Tribunal. I would not suffer the claimants by making further reduction, I would take Rs. 2,100/- on an average as determined by the Tribunal to be correct by taking the value of householder's services as a relevant factor in the manner laid down by the Hon'ble Supreme Court in Arun Kumar Aggarwal's case (supra).

Having regard to the fact that the claimants belonged to the lower stratum of the society and their annual income is less than Rs. 40,000/-, I would adopt the formula of prescribing the compensation in the manner provided under Schedule II of the Motor Vehicles Act. If the age of the deceased is 28 years, the appropriate multiplier would have been 18 instead of 16. I would also provide for loss consortium to the husband. The case is therefore, re assessed and the compensation is tabulated as under:- 1 2 3 4 5 6 7 8 9 F.A.O.Nos. 886 & 887 OF 2007 and F.A.O.Nos. 2644 & 2645 of 2008 7 Age Occupation Claimants 28 years Housewife, labourer husband and three children SI No. Heads of claim Amount(Rs) Amount(Rs) Tribunal High Court Income 2100/- p.m 2100/- p.m Add,% Increase 30%/50% ----- --- Average monthly income x 12 Deduction ½, 1/3, ¼, 1/5 Multiplicand 2100/- 2100/- 1/3rd 1400 x 12=16,800/- 1/3rd 1400 x 12=16,800/- Multiplier Loss of dependence Medical Expenses Loss of Consortium 10 Loss to estate and Funeral Expenses 16 ---- ----- 5000/- 10000 18 ---- ----- 5000/- 10000/- Total(Rs.) 2,83,800/-- 3,17,400/-

In all, the total amount that would become payable would be Rs. 3,17,400/. The amount in excess of what has already been awarded by the Tribunal shall bear interest at 6% per annum from the date of the petition till the date of payment. All the appeals are disposed of on the above terms. 14th October, 2010 Shivani Kaushik [K.KANNAN] JUDGE