1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
1/8
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
JUDGMENT
1. S.B. CIVIL MISC. APPEAL NO.1133/2005
(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.)
2. S.B. CIVIL MISC. APPEAL NO.1132/2005
(Rajesh Vs. Kumbha Ram & Ors.)
3. S.B. CIVIL MISC. APPEAL NO.1134/2005
(Badal Gajja Vs. Kumbha Ram & Ors.)
Date of order : 26th November, 2009
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. M.L. Panwar for the appellants.
Mr. O.P. Mishra ) for the respondents.
Mr. A.K. Dachich )
-------
REPORTABLE
BY THE COURT:-
1. Heard leaned counsels.
2. This appeal has been filed by the claimants aggrieved by
the award of the MACT, Jodhpur dated 3.5.2005 deciding claim case
No.297/2004 – Antima & Ors. Vs. Kumbha Ram & Ors., claim case
No.289/2004 – Rajesh Vs. Kumbha Ram & Ors. and claim case
No.299/2004 – Badal Gajja Vs. Kumbha Ram & Ors. out of which
these three appeals arise.
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
2/8
3. In the accident which took place on 18.11.1999 at about
10:00 PM in the night when the deceased Sunil Dutt and injured
claimants Rajesh and Badal Gajja were travelling in Tata Sumo
No.KA24/M 403 met with an accident with the truck No.RNM 7307
insured with respondent United India Insurance Company Ltd.,
Jodhpur and on account of the said accident Sunil Dutt, employee as
Bank clerk in the Punjab National Bank aged 35 years, died and
injured appellants Rajesh and Badal Gajja suffered injuries.
4. The learned Tribunal found while deciding issue No.1
that it was a case of contributory negligence and both the drivers of
Tata Sumo as well as truck driver and found that to the extent of 40%
the drive of Tata Sumo and 60% truck driver was responsible in
causing the said accident as the learned Tribunal while determining
the amount of compensation on the basis of evidence adduced by the
claimants, however, reduced the compensation to the extent 40% as
the owner and driver of the Tata Sumo were not impleaded as
defendants in the said claim petition.
5. The learned counsel for the claimants Mr. M.L. Panwar
submitted that it was not a case of contributory negligence but is a
case of composite negligence of both the drivers and relying on the
various decisions of Apex Court and of this Court including one in
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
3/8
the case of Said Peer Asraf Shah Jilani Vs. Indra Jeeet – 2005(10)
RDD 4556 (Raj.), he submitted that in case of composite negligence,
the claimants had a right to proceed against either of the tortfeasor
and, therefore, non-impleadment of owner of the Tata Sumo could not
amount to reduction in the amount of claim to the extent of 40% even
if the negligence to the extent of 40% on the part of the driver of the
Tata Sumo was found by the learned Tribunal. He also submitted that
the compensation in the case of deceased Sunil Dutt in the first appeal
No.1133/2005 deserves to be enhanced as the learned Tribunal has
not taken into account the future prospects of increase of the income
of the deceased Sunil Dutt, who was employed as clerk in the Punjab
National Bank at the time of accident and was only aged around 35
years and, therefore, suitable enhancement in compensation deserves
to be awarded in his favour. He relied upon the decision of the Apex
Court in case of Sarla Verma vs. Delhi Transport Corporation –
2009 (2)DNJ (SC) 684 in support of his submissions. In the said
judgment, the Hon’ble Supreme Court has held as under:-
“11. In Susamma Thomas, this Court increased the
income by nearly100%, in Sarla Dixit, the income was
increased only by 50% and in Abati Bezbaruah the income
was increased by a mere 7%. In view of imponderables
and uncertainties, we are in favour of adopting as a rule of
thumb, an addition of 50% of actual salary to the actual
salary income of the deceased towards future prospects,
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
4/8
where the deceased had a permanent job and was below 40
years. [Where the annual income is in the taxable range,
the words `actual salary’ should be read as `actual salary
less tax’]. The addition should be only 30% if the age of
the deceased was 40 to 50 years. There should be no
addition, where the age of deceased is more than 50 years.
Though the evidence may indicate a different percentage
of increase, it is necessary to standardize the addition to
avoid different yardsticks being applied or different
methods of calculations 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.
6. Learned counsels for the respondents do not dispute this
legal position, however, prayer for enhancement in the compensation
is opposed by them.
7. I have heard learned counsels at some length and perused
the record and reasons given in the impugned award.
8. While deciding issue No.1, the learned Tribunal has
clearly given its finding that both the drivers of both vehicles Tata
Sumo and truck were negligent in driving their respective vehicles.
Therefore, it was clearly a case of composite negligence and not
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
5/8
contributory negligence. As far as deceased Sunil Dutt and the
injured persons are concerned, who are trvelling as passengers in the
vehicle Tata Sumo, cannot be said to have contributed to the said
accident in any manner nor there is any such finding of the learned
Tribunal below. Since it was a case of composite negligence, the use
of the word (अशद य ) by the learned Tribunal in para 11 of the
impugned award is misnomer. The correct Hindi expression for
compensation composite negligence is य गद य . On the basis of the
findings of the learned Tribunal itself since the case of composite
negligence is made out, it appears that the Tribunal fell into error in
reducing the amount of compensation to the extent of 40% treating it
as a case of contributory negligence instead of a case of composite
negligence.
9. This Court in Said Peer Asraf Shah Jilani (supra) relying
on various decisions of Apex Court and English Law decided in para
9 as under:-
“In view of the aforesaid position of law, it appears
to be well – settled that qua the passengers of the
vehicle, who have not actively contributed in any
manner to the said accident and when the other
vehicles namely the Truck is comprehensively
insured, which fact is not in dispute, then the said
Insurance Company is responsible to make good
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
6/8
the entire amount awarded by the Tribunal qua
those claimants because those claimants had right
to proceed against any one of the tortfeasors.
Therefore, as far as the order of the Tribunal
reducing the payment of compensation to the
extent of 50% for other four deceased is
concerned, the same cannot be sustained and,
therefore, it is directed that the Insurance Company
– respondent No.3, who gave comprehensive
insurance cover to the truck, will pay the entire
amount of compensation for the other four
deceased.”
10. In view of the above legal position since the claimants to
proceed against either of the tortfeasor there was no justification for
reducing the quantum of compensation by 40%. The said part of the
award, therefore, deserves to be set aside and the appeal of the
claimant deserves to be allowed.
11. As far as the quantum of compensation is concerned, also
this Court finds considerable force in the submissions made by the
learned counsel for the appellant-claimants that some enhancement on
the basis of future prospects of the increase in the income of the
deceased Sunil Dutt, who was only aged 35 years at the time of his
death caused by the said accident deserves to be granted. The
Hon’ble Apex Court in the said decision of Sarla Verma’s case held
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
7/8
that 50% enhancement in such cases ought to be allowed.
12. Accordingly, the compensation of Rs.10,24,000/-
deserves to be enhanced by a further sum of Rs.5 lacs. However, it is
made clear that the claimants shall not be entitled to any further
interest on the said enhancement amount of Rs.5 lacs which should be
paid by the insurer of the truck along with 40% reduction made by the
learned Tribunal erroneously and which is now set aside by this Court
to the claimants of deceased Sunil Dutt within a period of 3 months
from today. The injured appellants shall also be similarly entitled to
recover their compensation to the extent of 40% as reduced by the
Tribunal from the insurer of the truck which should also be paid
within the aforesaid period of 3 months. Out of the said enhancement
amount of Rs.5 lacs, Rs.1 (rupees one lac) shall be paid by the United
India Insurance Company in the `Public Safety Account’ to the
Transport Commissioner, Govt. of Rajasthan, Jaipur for being utilized
for affixing radium reflectors on tractor trolleys, which work is being
undertaken by that department in cooperation with other departments
of the State Govt. under the directions of this Court in other cases.
The said amount may also be paid by the Insurance Company within
one month from today & compliance report and receipt be filed in this
Court. A copy of this order be also sent to the Transport
Commissioner, Jaipur and Dy. Commissioner, Transport Department,
Jodhpur for information & needful compliance.
1. CMA No.1133/05-(Smt. Antima & Ors. Vs. Kumbha Ram & Ors.), 2. CMA NO.1132/05,
(Rajesh Vs. Kumbha Ram & Ors.) & 3. CMA NO.1134/05 (Badal Gajja Vs. Kumbha Ram & Ors.)
Judgment dt.26.11.09
8/8
13. Accordingly, these three appeals are partly allowed as
aforesaid. No order as to costs.
[ DR. VINEET KOTHARI ], J.
item No.40 to 42
babulal/