IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.03.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Civil Miscellaneous Appeal Nos.2290 and 2371 of 2004
&
Cross Objection No.59 of 2004 in CMA.No.2290 of 2004
CMA.No.2290 of 2004:
M/s.Royal Sundaram Alliance
Insurance Company Limited,
Southern Regional Office,
46, Whites Road, Chennai-14. .. Appellant.
vs.
1. R.Srikanthan
2. Minor Santhiya
3. Minor S.Skandakumar
(Minors are rep. by 1st Respondent)
4. Krishnaveni.
5. M.s.Jahan Parcel Service,
6A, Gandhi Irwin Road,
Egmore, Chennai-8.
6. M/s.National Insurance Company Ltd.,
768, Mount Road,
Chennai.
7. R.Latha. .. Respondents.
CMA.No.2371 of 2004:
M/s.National Insurance Company Ltd.,
768, Mount Road,
Chennai. .. Appellant.
vs.
1. R.Srikanthan
2. Minor Santhiya
3. Minor S.Skandakumar
(Minors are rep. by 1st Respondent)
4. Krishnaveni.
5. M.s.Jahan Parcel Service,
6A, Gandhi Irwin Road,
Egmore, Chennai-8.
6. R.Latha. .. Respondents.
Cross Objection No.59/2004:
1. R.Srikanthan
2. Minor Santhiya
3. Minor S.Skandakumar
(Minors are rep. by 1st Respondent)
4. Krishnaveni .. Cross Objectors
vs.
1. M/s.Royal Sundaram Alliance
Insurance Company Limited,
Southern Regional Office,
46, Whites Road, Chennai-14.
2. M.s.Jahan Parcel Service,
6A, Gandhi Irwin Road,
Egmore, Chennai-8.
3. M/s.National Insurance Company Ltd.,
768, Mount Road,
Chennai.
4. R.Latha. .. Respondents
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Order dated 27.02.2004 made in M.C.O.P.No.100 of 2003 on the file of Motor Accident Claims Tribunal [Chief Judicial Magistrate], Villupuram.
Cross Objection filed by the Claimants to enhance the compensation awarded by the Tribunal in MCOP.No.100/2003 dated 27.02.2004 on the file of Motor Accident Claims Tribunal [Chief Judicial Magistrate], Villupuram.
For Appellant in
CMA.No.2371/04
& 6th Respondents : Mr.N.Vijaya Raghavan
in CMA.No.2290/04
For Appellant in
CMA.No.2290/04
& 7th Respondent : Mr.K.S.Narasimhan
in CMA.No.2371/04
For Respondents : Mr.A.S.Venkatachalapathy
1 to 4 and Senior Counsel
Petitioners in Cross for
Obj. No.59/04 Mr.M.Sriram
COMMON JUDGMENT
R.BANUMATHI,J
Feeling aggrieved by the apportionment of negligence in the ratio of 65% : 35% and award of compensation of Rs.57,70,000/- for the death of Anuradha, Appellant M/s. Royal Sundaram Alliance Insurance Company Limited, insurer of Maruthi car bearing registration No.TN-20 X 6711 has filed C.M.A.No.2290/2004. Being aggrieved by the quantum of compensation, Appellant National Insurance Company Limited, insurer of Mini lorry bearing registration No. TN-20 X 1572 has filed C.M.A.No.2371/2004. Being dissatisfied with the quantum of compensation, dependents of deceased Anuradha have filed Cross Objection No.59/2004 claiming enhancement of compensation. Since both the Appeals and Cross Objection arise out of the same order and the points for determination are one and the same, both the Appeals and Cross Objection were taken up together and shall stand disposed of by this Common Judgment. For convenient, the parties are referred as per their array in the Claim Petition.
2. The Appeals arise out of the accident on 22.8.2002. Brief facts are that on 22.8.2002, 1st Claimant-Srikanthan along with deceased Anuradha and her children were travelling in Maruthi Car bearing registration No.TN-20 X 6711 from Villupuram to Chennai. When the Car was nearing Padiriyapuliyur in GST Road near Lakshmi Hotel, the Mini lorry bearing registration No.TN-20 X 1572 came in the opposite direction from Chennai towards Villupuram trying to over take the lorry in a rash and negligent manner and dashed against the Maruthi car. Due to that impact, occupant of Maruthi car viz., Anuradha died on the spot and other occupants have sustained injuries. Regarding the accident, criminal case was registered in Crime No.429/2002 of Mylam Police Station. Anuradha was aged 30 years at the time of accident and she was permanent citizen of Australia. She was working at Australia as Binder Operator and was earning Rs.44,720/- per month. Alleging that the accident has occurred due to rash and negligent driving of both Mini lorry driver and Maruthi car driver, Claimants have filed Claim Petition claiming compensation of Rs.1,06,74,520/-.
3. Before the Tribunal, 1st Claimant-Srikanthan was examined as PW1 and Exs.P1 to P24 were marked. On the side of Respondents, one Narendran, private Investigator was examined as RW1. Driver of Mini lorry [Kalaiyarasan] was examined as RW2. One Selvanathan, who was then working as Assistant Administrative Officer in National Insurance Company was examined as RW3. Driver of Maruthi car [Raju] was examined as RW4. One Ramachandran-father of deceased Anuradha was examined as RW5. On the side of Respondents, Exs.R1 to R4 were marked.
4. Upon analysis of evidence, Tribunal held that the accident was due to rash and negligent driving of both the driver of Mini lorry as well as Maruthi car and the owners and insurers of both vehicles are jointly and severally liable to pay compensation. Tribunal apportioned composite negligence in the ratio of 65% : 35% respectively. Taking monthly income of the deceased at Rs.32,000/- and adopting multiplier “15”, Tribunal awarded compensation of Rs.57,60,000/- for “loss of dependency”. Tribunal has also awarded Rs.10,000/- for ‘loss of consortium”, totalling into Rs.57,70,000/-.
5. Mr.K.S.Narasimhan, learned counsel for Appellant-Sundaram Alliance Insurance Company [CMA.No.2290/2004] contended that there is no specific allegation of negligence against the Maruthi car driver and the evidence of RW1 and his report [Ex.R1] cannot be accepted. Learned counsel would submit that RW1 had not examined PW1 or driver of Maruthi car and while so, based upon the evidence of RW1 and his report Ex.R1, Tribunal erred in fastening the liability upon driver of Maruthi car. It was mainly contended that the Maruthi car being small vehicle, rear portion alone damaged in the accident which was not analysed in a proper perspective by the Tribunal and the Tribunal erred in fastening the liability upon Maruthi car and findings of the Tribunal are not sustainable. In support of his contention, learned counsel placed reliance upon 2004 (1) TN MAC (DB) 276 [The National Insurance Co., Ltd., Madurai v. Sujaya C.Moorthy and others].
6. Mr.N.Vijayaraghavan, learned counsel for Appellant National Insurance Company [CMA.No.2371/2004] has submitted that in collision between two vehicles, apportionment of negligence does not arise, since owners and insurers of both the vehicles would be jointly and severally liable to pay compensation. Learned counsel would further contend that a doubt here and there will not obscure the findings and Claimants can claim entire compensation from all or any of the drivers, owners and the insurer of the vehicle and each one of them are jointly and severally liable to pay compensation. In support of his contention, the learned counsel placed reliance upon 2000 ACJ 1463 [Ganesh v. Syed Munned Ahamed and others].
7. Upon consideration of evidence, findings of the Tribunal and rival contentions, the following points arise for consideration in these Appeals as well as Cross Objection.
(1) Whether the accident was due to rash and negligent driving of the Mini lorry driver alone as contended by the insurer of Maruthi car Sundaram Alliance Insurance Company?
(2) Whether the accident was due to composite negligence of Mini lorry bearing registration No.TN-20 X 1572 and Maruthi car bearing registration No.TN-20 X 6711?
(3) Whether the Tribunal was right in apportioning composite negligence in the ratio of 65% : 35%?
(4) Whether the total compensation of Rs.57,70,000/- awarded by the Tribunal is reasonable?
(5) Whether the compensation of Rs.57,70,000/- awarded by the Tribunal is to be enhanced and if so, what is the quantum?
8. Points 1 to 3:- First claimant’s sister viz., 7th Respondent is the owner of Maruthi car. On 22.8.2002, 1st Claimant [PW1] and deceased Anuradha and their children and mother of PW1 after worshiping in Palani, returning in Maruthi car from Villupuram to Chennai. Anuradha was seated on the rear right side of the car. In his evidence, PW1 has stated that when the car was proceeding near Padiriyapulliyur in GST Road, near Lakshmi Hotel, the Mini lorry bearing registration No.TN-20 X 1572 driven in a rash and negligent manner over took another lorry and hit against Maruthi car which suffered extensive damages and Anuradha sustained fatal injuries and died instantaneously on the spot. PW1 and his father RW5 have spoken about the accident and have also stated that the accident was due to rash and negligent driving of Mini lorry driver.
9. In his evidence, RW4-Raju, driver of Maruthi car has stated that while he was proceeding from Villupuram to Chennai and when the car was nearing Palapattu, Mini lorry came in the opposite direction overtaking another vehicle and though he tried to swerve the car on the left side, Mini lorry hit against the Maruthi car. In the accident, driver also sustained fracture in his right hand and Anuradha who seated on the rear right side sustained fatal injuries and died on the spot. Evidence of RW4 is to the effect that the accident was due to rash and negligent driving of Mini lorry driver.
10. RW2-Kalaiarasan, driver of Mini lorry has stated that while he was proceeding from Chennai to Madurai and when proceeding near Vikravandi at about 3.15 A.M., Maruthi car bearing registration No.TN-20 X 6711 came in the opposite direction overtaking another one van. RW2 has also stated that he also overtook another vehicle and on seeing the Maruthi car, he swerved his vehicle on the left side and since there was no space on the left side, Mini lorry hit against the rear right side of Maruthi car. RW2 has stated that the accident was due to negligent driving and carelessness of driver of Maruthi car and Maruthi car driver alone is responsible for the accident. In his evidence, RW2 has stated that he has overtaken by another lorry and Maruthi car came from the opposite direction and there was no place for him to swerve to the left and while he turned to the left side, Mini lorry’s front side hit against the back side of Maruthi car and that he is no way responsible for the accident.
11. RW1-Narendran, who was then working as Investigating Officer in M/s.Victory Associates has inspected the accident spot and had also made enquiries and Ex.R1 is the Investigation Report. Opining that the Maruthi car coming from the opposite direction overtook another Van and hit against the Mini lorry and driver of Maruthi car was negligent and responsible for the accident.
12. For ascertaining the accident, oral evidence of PW1 and RWs.1 to 4 will have to be analysed in the light of the documents and other circumstances. Ex.P1 is the FIR registered in Crime No.429/2002 of Mayilam Police Station in which 1st Claimant has stated that Mini lorry hit against the Maruthi car. In Ex.P1-FIR, the 1st Claimant has stated that @tpGg;g[uj;jpy; ,Ue;J brd;id bry;Yk; njrpa beL”;rhiyapy; te;J bfhz;L ,Ue;j nghJ vjpnu brd;idapypUe;J tpGg;g[uk; nehf;fp te;J bfhz;oUe;j TN-20 X 1572 vd;fpw Mini Cargo yhhp Rkhh; 3/15 kzpastpy; ghyg;gl;L yl;Rkp ncwhl;ly; mUfpy; mjpfntfkhft[k;. ftdf;Fiwthft[k; Xl;o te;J v’;fsJ khUjp fhh; kPJ nkhjptpl;lJ@/ From Ex.P1-FIR, it is not possible to reconstitute the accident and who was at fault.
13. In the accident, front side of Maruthi car was not much damaged, only rear right side seat was extensively damaged and Anuradha instantaneously died on the spot. Laying emphasis upon the pattern of damages, Mr.Narasimhan, learned counsel appearing for insurer of Maruthi car submitted that driver of Maruthi car tried to swerve to the left side and that is why front side was not damaged and only the rear right side was damaged and while so, Tribunal erred in apportioning the negligence in the ratio of 65% : 35%. To examine the merits of the contention, we have also gone through Ex.P2-MVI Report. As is seen from Ex.P2-MVI report that Mini lorry [TN-20 X 1572] suffered the following damages:
“Front bumper, right coul damaged; front right anchor cut; spring bar dislocated; front maul fixle dislocated; steering box, link bend, chassis bend at front side; fan damaged”.
Maruthi car [TN-20 X 6711] suffered the following damages:
“Front head light all glasses except rear window screen glass broken; complete body superstructure very badly damaged; Engine, gear box, steering box, front wheel, dash board, passenger seat, chassis were badly damaged”.
From the pattern of damages, it is seen that front right side of the Mini lorry hit against the Maruthi car resultantly Maruthi car sustained extensive damages.
14. Learned counsel appearing for insurer of Maruthi car submitted that deceased was seated on the right rear side and only on account of direct hit of Mini lorry on Maruthi car, she sustained head injuries and died on the spot and the driver of Maruthi car as well as PW1 sustained only negligible or no injuries in the said accident which the Tribunal failed to appreciate in a proper perspective. It was further submitted that in his cross-examination, RW2 had admitted that Mini lorry was a heavy vehicle and Maruthi car was a light vehicle and driver and PW1 have sustained simple injuries and front side of car was not damaged which probabilises that only Mini lorry hit the right rear side of the Maruthi car and was negligent. It was further argued that oral evidence would make it clear that Mini lorry driver overtook another vehicle and he could not swerved his vehicle due to parked vehicle on his left side and right front side of the Mini lorry collided which would show that the accident was solely due to negligent and reckless driving of Mini lorry driver and therefore, Tribunal ought to have held that the accident was due to negligent driving of the Mini lorry driver and erred in apportioning the negligence in the ratio of 65% : 35%.
15. The contention that the entire negligence should have been fastened upon Mini lorry driver does not merit acceptance. It is common experience that while driving at night time the glare of vehicles coming from the opposite direction leaves the other driver blinded for a moment, the result of which is that the traffic going ahead of him or parked vehicle is not visible, unless there are some lights or other indication to show the existence of such traffic or parked vehicles. On seeing the Mini lorry coming in the opposite direction, it was for the Maruthi car driver to have immediately slow down when the glare of the Mini lorry coming from the opposite side affected him. In the evidence, there is nothing to indicate that Maruthi car driver reduced his speed and avoided collision. Thus negligence of Maruthi car driver is also established by the fact that he was driving with speedily. It is also pertinent to note that long distance which the car was traversing is also to be kept in view. PW1 and his family started in Palani on 21.8.2002 at about 3.00 P.M. and after resting a while in Villupuram, they were proceeding to Chennai.
16. Ex.R1-Investigation Report contains Accident Registers of RW4-driver of Maruthi car and children of PW1 [Minor Skandakumar and Minor Sandhiya]. In the Accident Register of driver of Maruthi car, the manner of accident is stated as “Alleged to have been injured while driving a Maruthi car while overtaking a van around 3 AM on 22.08.2002 near Sendoor (Vikravandi).” In the Accident Registers of 3rd and 2nd Claimants also, the manner of accident has been stated as above. Pointing out the manner of accident stated in the Accident Registers, Tribunal has observed that Maruthi car also overtook a van around 3.00 A.M. and contributed to the accident. The manner of accident stated in the Accident Registers is the earliest statement made by the Claimants, much weight has to be attached as to the manner of accident. Pointing out the manner of accident as stated in the Accident Registers, Tribunal has observed that RW4-Maruthi car driver has not come out with correct particulars and has suppressed the material particulars. Upon analysis of evidence and Ex.R1-Investigation Report, in our considered view the Tribunal has rightly held that the accident was due to composite negligence of both the vehicles Mini lorry and Maruthi car and both the vehicles are the joint tortfeasors.
17. Driver of Maruthi car has filed MCOP.No.37/2003 on the file of Motor Accident Claims Tribunal [II Additional Subordinate Judge], Villupuram. As per the order in C.M.P.No.188/2010 dated 08.03.2010, the Award in MCOP.No.37/2003 was ordered to be received as additional evidence in these Appeals and marked as Ex.R5. Tribunal has recorded finding that the accident was solely due to negligent driving of Mini lorry driver. In MCOP.No.37/2003, Tribunal has passed the Award on 30.11.2006 awarding compensation of Rs.1,83,300/- jointly and severally payable by the owner and insurer of Mini lorry to the car driver.
18. It was submitted that the Award in MCOP.No.37/2003 was not challenged and the same has become final. Learned counsel for insurer of Maruthi car contended that in MCOP.No.37/2003, the Tribunal has held that the accident was solely due to negligence of Mini lorry driver and the impugned Award in MCOP.No.100/2003 apportioning the negligence in the ratio of 65% : 35% is contradictory and there cannot be two contradictory views as to the same accident. In support of his contention, learned counsel for insurer of Maruthi car placed reliance upon 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others] where collision between Corporation bus and truck coming from opposite direction and several passengers travelled in the bus including driver sustained injuries. Passengers filed Claim petitions and the driver of the bus was not impleaded as Respondent. Driver of the bus examined onbehalf of Corporation and finding on negligence in claims made by passengers went against the bus driver and the bus driver did not file any appeal even when his own claim petition was pending before the same Tribunal and the finding attained finality and it was accepted by the Corporation. In such facts and circumstances, the Supreme Court held that non-filing of appeal would give rise to an anomalous situation. Holding that the Appellant was found to be rash and negligent in driving and is legally liable and that if he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal there against, in Para (23), the Supreme Court held as under;-
“23. This case gives rise to an anomalous situation. The Corporation has been found to be liable to pay the amount of compensation claimed by the passengers of the bus only because the appellant was found to be rash and negligent in driving. The law cannot be construed in such a manner so as to lead to such a conclusion as the same court in this case which was being heard simultaneously held that he was not negligent and the driver of the truck was negligent so as to fasten the liability also on the owner of the truck. …..”
19. Laying emphasis upon the findings in MCOP.No.37/2003 where the Tribunal held that the accident was due to negligent driving of Mini lorry driver, learned counsel contended that findings in MCOP.No.37/2003 was not challenged and the finding has become final and therefore, there cannot be any contradictory finding in respect of the same accident. In support of his contention, learned counsel also placed reliance upon the unreported Judgment in C.M.A.Nos.1553 of 1999 and 2031 of 2000 dated 26.12.2001 [P.S.D.,J], wherein the learned single Judge has held that two contradictory views will lead to an anomalous situation which is not permissible in law.
20. Learned counsel for insurer of Mini lorry has submitted that as against the Award in MCOP.No.37/2003 and its findings thereon, Appellant-National Insurance Company has preferred an appeal in CMA SR.No.82279/2009 along with application to condone the delay and the matter is said to be pending. As rightly submitted by the learned counsel Mr.Vijayaraghavan, the finding of the Tribunal in MCOP.No.37/2003 might not have been brought to the notice of the Tribunal while passing the Award in MCOP.No.37/2003. In our considered view, since, the Award in MCOP.No.37/2003 is challenged by way of an appeal in CMA SR.No.82279/2009, we do not propose to go into the question whether the finding in MCOP.No.37/2003 would operate as issue of estoppel. Since the appeal is said to have been filed, we do not propose to go into the applicability of the decision in 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others].
21. Upon analysis of evidence, Tribunal has held that the Respondents 1 to 4 are jointly and severally liable to pay compensation and apportioned the negligence in the ratio of 65% : 35%. Learned counsel for insurer of Mini lorry contended that in collision between two vehicles, apportionment of negligence and liability does not arise. Placing reliance upon 2000 ACJ 1463 [Ganesh v. Syed Munned Ahamed and others], it was further contended that when the accident was caused on account of negligence of driver of two vehicles, the victim or legal representatives of deceased can recover compensation from all or any one of the joint tort-feasors. After referring to various decisions as to whether there is necessity for apportionment of liability, the Full Bench of Karnataka High Court held as under:-
“The law of Torts under common law as stated by various authors makes it clear that in case an accident is caused on account of negligence of the drivers of two vehicles or in other words, in case of joint tortfeasors, the liability of the said joint tortfeasors is both joint and several and it is open to the victim of the accident or the legal representative of the victim of the accident in the case of death, to proceed against any one of the joint tortfeasors or against both of them. If the drivers of both the vehicles, on account of their rash and negligent driving, are the cause for the accident and as a result of it, damage is caused to a third party, the liability of each of the joint tortfeasors cannot be limited insofar as the victim of the accident is concerned on the ground that they must be treated as several tortfeasors and their liability must be limited to the proportion or to the extent of negligence. While the liability of the joint tortfeasors inter se amongst them must be held to be proportionate to the extent of their negligence, insofar as the claimant, who is the victim of the accident or the legal representative of the deceased in an accident is concerned, it is joint and several. The mandate contained in section 110-B of Motor Vehicles Act, 1939, requiring the Tribunal to specify the amount which is required to be paid by the insurer, owner or driver of the vehicle involved in the accident, or by all or any of them, as the case may be, cannot be understood or interpreted to mean that the right of the claimant to proceed against one of the joint tortfeasors in the case of composite negligence is taken away or in any manner modified or altered.”
22. Composite negligence would arise when negligent acts or omissions of two or more persons have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and as such he is entitled to sue all or anyone of the negligent persons for damage. It is no concern of his whether there is any duty of contribution or indemnity as between the negligent persons [See AIR 1975 P & H 259 [Union of India v. Hindustan Lever Ltd.].
23. The principle of composite negligence comes in where more than one person is responsible in the commission of the wrong and the person wronged had a choice against all or any one or more than one of the wrongdoers. Every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he cannot avoid the liability. In case of composite negligence, normally it is not possible to fix the liability among the different drivers. Both are jointly and severally liable to the claimants ‘because they are joint tortfeasors’. [See 1991 ACJ 198 (MP) (DB) [Hullanbai v. Jagdish Prasad].
24. There is divergence of opinion on the question whether the Tribunal can direct apportionment of the inter se liability between the joint tortfeasors in cases of composite negligence. In Parsani Devi v. State of Haryana [1973 ACJ 531], the Punjab and Haryana High Court held as follows:
“It is therefore, held that both the drivers being composite or joint tort-feasors, the liability of payment of the compensation by the State of Haryana as the owner of the bus extends to the whole of the amount that may be awarded, it being left open to the State of Haryana to seek such contribution from such persons as it may deem fit.”
25. In 1988 ACJ 8 (Raj) [National Insurance Co., v. Kastoori Devi], the Division Bench of Rajastan High Court held as follows:-
“It has been laid down in a plethora of cases of this court as well as other High Courts that in case of composite negligence the liability cannot be apportioned. In a case of composite negligence there is no method of indicia to bifurcate or apportion the liability and the only course open in such in such cases can be to make them both liable as jointly or severally. So far as the claimants are concerned, they can realise the amount from any one of the insurance companies and then the insurance company, which pays the entire amount, can take steps for recovering half of the amount from the other insurance company.”
26. In 1988 ACJ 597 (Ker) [United India Insurance Co., Ltd., v. Premakumaran], the Division Bench of Kerala High Court held that where the incident had happened as a result of the composite negligence of the driver of the bus and the railway administration, the claimants are entitled to recover the entire amount from any of the joint tort-feasors and there could be one decree against all of them.
27. In 1996 ACJ 1125 (SC) [Karnataka State Road Transport Corporation v. K.V.Sakeena], wherein collision between a Corporation bus and truck-trailer coming from opposite direction resulting in death of four passengers travelled in the bus including the driver and two others sustained injuries. In that case, the question arose whether driver of the truck-trailer was negligent or not. After analysing the evidence on record, the Supreme Court came to the conclusion that the driver of the truck-trailer was also negligent and the proportion of the negligence of the driver of the bus and the driver of the truck-trailer was determined at 60% and 40% respectively and in the light that conclusion, the Supreme Court has held that the owner, driver and insurer of the truck-trailer are liable jointly and severally to pay 40% of compensation.
28. It emerges from the above decisions that while awarding of amount in a case of composite negligence Tribunal can direct payment of entire compensation jointly and severally, but at the same time would apportion the liability between two owners for their facility, and if both the owners or the two insurance companies, as the case may be, may pay the amounts to the claimant in proportion as awarded by the Tribunal, there is no problem for the claimant. But in case of any one of the parties liable does not want to honour the award from the other, leaving such party to claim rateable distribution from the owner of the other vehicle involved in the accident and found negligent by the Tribunal.
29. Upon analysis of evidence and materials on record, there is no escape from the conclusion that this is the case of composite negligence. Tribunal has apportioned the liability at 65% as that of the Mini lorry driver and 35% as that of the Maruthi car driver. If so apportioning the composite negligence, all the Respondents shall be jointly and severally liable to pay compensation to the Claimants awarded and the Respondents inter se are entitled to rateable contribution in respect of the compensation recovered from them by the Claimants.
30. Points 4 and 5:- At the time of accident, deceased Anuradha was aged 30 years and she was qualified in B.Sc., [Physics] and also qualified in Information Technology [Software Applications]. Ex.P12 is the certificate showing that she was qualified in Information Technology from Melbourne University. She was working as Operator Binder. In his evidence, PW1 has stated that he got married Anuradha in 1994 and within one year, he has taken her to Australia. In Australia, Anuradha joined the job in October 1994 and she had also joined part-time course and also qualified in Software Information Technology as is seen from Ex.P12. At the time of accident, Anuradha was working in Kalamazoo till her death. Ex.P22 [24.10.2003] is the discharge certificate issued by employer Kalamazoo showing that Anuradha employed till her death. As is seen from Ex.P23, Anuradha was getting salary of 443.00 Australian dollar. Ex.P24 would show that she was getting 563.60 Australian dollars.
31. Exs.P14 to P21 are the Income tax returns for the year 30.6.1995 to 30.6.2002. Exs.P14 to P21 shows that Anuradha was getting 17533, 34893, 31851, 28581, 25047, 24897, 22556, 15114 Australian dollars respectively. Calculating in terms of Indian money [at the rate of Rs.25/- per Australian dollar], Anuradha was getting Indian income of Rs.4,83,325/-, Rs.8,72,325/-, Rs.7,96,275/-, Rs.7,14,525/-, Rs.6,26,175/-, Rs.6,22,425/-, Rs.5,63,900/-, Rs.3,78,600/- respectively per annum. From Exs.P14 to P21, Tribunal has taken the monthly income of deceased Anuradha as Rs.36,527/-, Rs.72,694/-, Rs.66,356/-, Rs.59,544/-, Rs.52,181/-, Rs.51.689/-, Rs.46,992/- and Rs.31,550/- respectively. The learned counsel for Respondents-Claimants submitted that the income of the deceased Anuradha ought to have been taken as Rs.67,080/- per month. The Claimants have so arrived at the income by taking Australian dollar as equivalent to Indian money as Rs.30/-. In our considered view as per the evidence, the then prevailing rate of Australian dollar was only Rs.25/-. While so, it cannot be taken at a higher rate of Rs.30/-. Based on Exs.P14 to P21 and taking Australian dollar value as Rs.25/-, Tribunal has rightly calculated the average monthly income at Rs.52,214/-.
32. After taking the monthly income of the deceased Anuradha at Rs.52,214/-, Tribunal has deducted 1/3rd for personal expenses and taken the monthly contribution/loss of dependency at Rs.34,810/-, rounded to Rs.32,000/-. At the time of accident, deceased Anuradha was aged 30 years. Tribunal has adopted multiplier “15” and calculated loss of dependency at Rs.57,60,000/-. Tribunal also awarded Rs.10,000/- for “loss of consortium” to the 1st Claimant, totalling into Rs.57,70,000/- payable with interest at the rate of 9% p.a.
33. Learned counsel for both insurer of Mini lorry and Maruthi car contended that at times the deceased was getting lesser salary and in support of their contention, they have drawn our attention to the salary of Anuradha from 30.6.2001 to 30.6.2002 during which period she was getting only Rs.31,550/- per month and while so, Tribunal has taken monthly income at Rs.52,214/- which is very much on the higher side. By going through the evidence and order of the Tribunal, it is seen that Anuradha was getting less salary of Rs.31,550/- while she was pregnant and while she was not attending the work and therefore, an amount of Rs.52,214/- cannot be taken as basis for fixing the monthly income.
34. On the otherhand, Courts will have to take multiplicand depending upon the income of the deceased and multiplier depending upon the age and then determine the compensation. For determining the amount of compensation, in (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], the Supreme Court has laid down the guidelines and the factors to be taken into consideration and held as follows:-
“18. Basically only three facts need to be established by the Claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at the Loss of Dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the Personal Living Expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased.
If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand)
The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation)
The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family.
Thereafter, a conventional amount in the range of Rs.5000 to Rs.10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death 9if incurred) should also be added.”
35. Future prospects Learned counsel for the Claimants contended that Anuradha was qualified in Computer and also qualified in Software and Information Technology and she was getting more than Rs.50,000/- and while so, Tribunal has not taken into account the future prospects. In support of his contention that Courts will have to take into consideration the future prospects of the deceased, learned Senior Counsel for Claimants placed reliance upon (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], wherein the Supreme Court held that though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
36. It is fairly well settled that while determining the quantum of compensation, future prospects like promotion, career, revision of pay and other prospects will have to be kept in view. As pointed out earlier, Tribunal has taken the monthly income at Rs.52,214/-. As noted earlier, during the period from 30.6.2001 to 30.6.2002, Anuradha was getting lesser amount of Rs.31,550/-. It is seen from the documentary evidence, in Australia the salary is not paid monthly wise, but paid on weekly basis depending upon hours of work and time basis. Even while Anuradha was getting lesser salary ranging between Rs.30,000 Rs.50,000/-, while taking her monthly income at Rs.52,214/-, in our considered view, Tribunal did keep in view the future prospects of Anuradha.
37. In so far as, personal expenses, Tribunal has deducted 1/3rd amount for personal expenses. Placing reliance upon (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], learned Senior Counsel for Claimants contended that when the deceased was married, deduction towards personal and living expenses somewhere between one-third where number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6 and one-fifth where the number of dependent family members exceeds six. Learned Senior Counsel would submit that since deceased Anuradha was having husband, two children and also mother, one-fourth deduction ought to have been made for personal expenses. In number of decisions, the Supreme Court has taken consistent view that one-third deduction to be made for personal expenses. In (2008) 4 SCC 259 [Bilkish v. United India Insurance Co., Ltd.,], the Supreme Court has taken the view that deceased would have spent one-third towards personal use and the contribution two-third of his income to his family. Undisputedly, deduction of one-third towards personal expenses is ordinary rule in India. The deceased was settled in Australia and she was a citizen in Australia. While living in abroad in the country like Australia, the cost of living would have been more. Deceased Anuradha would have spent considerable amount for travelling to her work place and work attire, warm clothes etc. Looking by the standards of living in Australia, one-third expenses for personal deduction would be very much on the lower side. In our considered view, in the facts and circumstances of the present case, the same should be applied. Deduction of 1/3rd income for personal expenses is maintained.
38. Choice of multiplier As we pointed out earlier, at the time of accident deceased was aged 30 years. As per Second Schedule to M.V. Act, the multiplier to be adopted is “18”. As per the guidelines laid down in (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], Colum 4 in Para 40, the multiplier for the age group 26 30 years to be adopted is “17”. Learned Senior Counsel for Claimants submitted that Tribunal has deviated from Second Schedule to M.V. Act and also well settled principles in adopting the multiplier. Grievance of the Claimants is that Tribunal should have adopted multiplier “17” “18” and choice multiplier “15” adopted by the Tribunal is very much on the lower side.
39. From the decisions of the Supreme Court in Susamma Thomas case (1994) 2 SCC 176] and Trilok Chandra’s case [(1996) 4 SCC 362], what emerges is that Court must adhere to the system of multiplier in arriving at the proper amount of compensation with a view to maintain uniformity and certainty. Referring to various decisions on the question of choice of multiplier, in (2002) 6 SCC 281 [United India Insurance Company Ltd. and others v. Patricia Jean Mahajan and others], the Supreme Court held that multiplier less than what is provided in the schedule could be applied in the special facts and circumstances of the case.
40. Referring to the decision in the case of Susamma Thomas case (1994) 2 SCC 176], in (2002) 6 SCC 306 [Jyoti Kaul v. State of M.P], the Supreme Court reiterated that multiplier system should be applied for the purposes of calculation of amount of compensation. It has also been observed that the question as to what multiplier should be applied would depend upon various facts and circumstances of the case, hence the multiplier may change to some degree.
41. As held by the Supreme Court in Jyoti Kaul’s case [(2002) 6 SCC 306], choice of multiplier may differ to some extent depending upon the facts and circumstances of the case. As held by the Supreme Court in (2002) 6 SCC 281 [United India Insurance Company Ltd. and others v. Patricia Jean Mahajan and others], normally, the Second Schedule may provide a guide for application of multiplier but for valid and proper reasons, different multiplier can be applied, indeed not exceeding “18” in any case on the upper side. As indicated in the case of Sussamma Thomas itself the Court gave an example of a situation where the age of the victim may be 45 years, but who may be a bachelor with his parents alone as dependants, obviously, meaning thereby that lesser multiplier could be applied in such a case. By applying a multiplier other than the scheduled multiplier does not mean that any method other than multiplier method has been applied. For some special reasons, some deviation from the scheduled multiplier can be made.
42. In the instant case, Anuradha was a citizen of Australia and she was settled in Australia. Her monthly salary was ranging from Rs.30,000 Rs.50,000/-. Tribunal has taken the monthly income at Rs.52,214/- which is slightly higher. Having regard to the multiplier taken and multiplicand arrived at by the Tribunal, in our considered view, Tribunal was justified in adopting lesser multiplier i.e. “15”. When the victim is a citizen of Australia and compensation to be paid in India, there is so much disparity in the economic conditions and affluence of two places.
43. In Patrica Jean Mahajan’s case, [(2002) 6 SCC 281], a Foreign citizen succumbed to injuries sustained in a motor accident in India, the amount of dependency was calculated on the basis of deceased income in US dollars which is equivalent to Rs.16.12 crores. Holding that in the background of Indian Conditions such amount is fabulous amount, though it cannot be so in the background of American conditions and that golden balance must be struck somewhere to arrive at a reasonable and fair mesne, in (2002) 6 SCC 281 [United India Insurance Company Ltd. and others v. Patricia Jean Mahajan and others], the Supreme Court held as under:-
“19. …… Looking to the Indian economy, fiscal and financial situation, the amount is certainly a fabulous amount though in the background of American conditions it may not be so. Therefore, where there is so much of disparity in the economic conditions and affluence of the two places viz. The place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne. Looking by the Indian standards they may not be much too overcompensated and similarly not very much under compensation as well, in the background of the country where most of the dependant beneficiaries reside. …..”
44. Applying the ratio of the above decision, in our considered view the “loss of dependency” calculated by the Tribunal at Rs.3,84,000/- per annum is reasonable. In the facts and circumstances of the case, the multiplier “15” adopted by the Tribunal is also reasonable and the total compensation of Rs.57,70,000/- awarded by the Tribunal is confirmed.
45. Tribunal has only awarded compensation of Rs.57,60,000/- for “loss of dependency” and also awarded Rs.10,000/- for “loss of consortium” to the 1st Claimant. Tribunal has not awarded any amount towards “loss of love and affection”, “loss of estate” and “funeral expenses”. Claimants 2 and 3 were minors aged 4= years and 1 year respectively. 2nd and 3rd Claimants have lost their mother at their very young age. Like wise, 4th Claimant is the mother of the deceased who has lost his daughter Anuradha. Tribunal ought to have awarded compensation for “loss of love and affection” to Claimants 2 to 4. Having regard to the facts and circumstances of the case, compensation of Rs.10,000/- awarded for “loss of consortium” is enhanced to Rs.25,000/-. An amount of Rs.25,000/- each totalling Rs.75,000/- is awarded to Claimants 2 to 4 for “loss of love and affection”, Rs.5000/- is awarded for “loss of estate” and another Rs.5000/- is awarded for “funeral expenses”. Thus, the compensation amount is enhanced by Rs.1,00,000/- for above conventional damages.
46. In modification, the compensation awarded by the Tribunal is enhanced to Rs.58,70,000/- as under:-
Loss of dependency :Rs.57,60,000.00[as awarded by (Rs.3,84,000 x 15) the Tribunal] Loss of consortium :Rs. 25,000.00 Loss of love and affection (Rs.25,000/- each to Claimants 2 to 4) :Rs. 75,000.00 Loss of estate :Rs. 5,000.00 Funeral expenses :Rs. 5,000.00 ------------------- Total :Rs.58,70,000.00 -------------------
The amount of Rs.58,70,000/- is to be apportioned amongst the Claimants as follows:- First Claimant would be entitled to 12,95,000/-; Claimants 2 and 3 would be entitled to Rs.20,25,000/- each and 4th Claimant would be entitled to Rs.5,25,000/-.
47. The Tribunal has awarded interest at the rate of 9% p.a. Since the accident is of the year 2002 and having regard to the facts and circumstances of the case, interest awarded at the rate of 9% p.a. is maintained.
48. In the result,
CMA Nos.2290 & 2371/2004:- Apportionment of composite negligence in the ratio of 65% : 35% fixed by the Tribunal in M.C.O.P.No.100/2003 is confirmed and both the appeals are dismissed.
Cross Objection No.59/2004:- The compensation amount of Rs.57,70,000/- awarded by the Tribunal is enhanced to Rs.58,70,000/- payable with interest at the rate of 9% p.a. from the date of Claim Petition till the date of deposit and the Cross Objection is partly allowed.
Both insurers [National Insurance Company and Royal Sundaram Alliance Insurance Company] are directed to deposit their respective apportionment of compensation [65% : 35%] within a period of eight weeks from the date of receipt of copy of this Judgment. On such deposit, Claimants 1 and 4 are permitted to withdraw their respective share along with accrued interest. The share in respect of Claimants 2 and 3 is ordered to be invested in a nationalised bank till they attain majority and 1st Claimant is permitted to withdraw the accrued interest once in three months directly from the bank.
In the circumstances of the case, there is no order as to costs in these Appeals and Cross Objection. Consequently, connected MPs are closed.
(R.B.I., J.) (M.V., J.)
17.03.2010
Index: Yes/No
Internet:Yes/No
bbr
To
1. The Motor Accident Claims Tribunal,
Chief Judicial Magistrate, Villupuram.
R.BANUMATHI, J.
and
M.VENUGOPAL,J.
bbr
Common Judgment in
C.M.A.Nos.2290 & 2371 of 2004
and Cross Obj.No.59/2004
17.03.2010