JUDGMENT
Arun Mishra, J.
1. Out of these four appeals, three appeals arise out of Claim Case No. 30 of 2004 and M.A. No. 1874 of 2006 arises out of Claim Case No. 28 of 2004.
2. The appellants are aggrieved by common award dated 13.1.2006 passed by Fifth Additional M.A.C.T. (Fast Track), Satna. In an accident dated 17.5.2004 when the deceased Samreen Sana was travelling in bus No. MP 17-A 4835, it collided with JCB machine. Bus was driven by Ram sakha Chourasia, owned by Prahlad Singh and insured with Oriental Insurance Co. Ltd. whereas JCB machine was driven by Rajesh Maruti. It was owned by Ramakant Pandey and insured with New India Assur ance Co. Ltd.
3. The Claim Case No. 30 of 2004 was filed by widow of late Samreen Sana. Deceased was senior engineer. Claimants alleged negligence of driver of the bus. Bus was driven in a rash and negligent manner as per claimants. Age of deceased Samreen Sana was 26 years. Salary of the deceased was Rs. 25,000 per month. He was in the service of Tata Telecom Service Ltd. at New Delhi. He used to pay Rs. 16,667 per month for household expenses. Total compensation of Rs. 46,45,072 was claimed under various heads.
4. The Claim Case No. 28 of 2004 was filed by Tulsi Sarkar. She was also travelling in the same bus towards Badgadi, District Panna. Bus was driven in a rash and negligent manner and dashed JCB machine. It was claimed that she sustained fracture in the left hand. She was admitted in district hospital. The plaster was applied. She was referred to Jabalpur where she obtained treatment in Jamdar Hospital. Compensation of Rs. 2,20,000 was claimed.
5. The learned Member, Claims Tribunal has found that driver of the bus was negligent. Salary of the deceased has been taken at the basic salary of Rs. 6,875. 1/3rd deduction has been made over the self-expenditure of the deceased. The monthly dependency has been found at Rs. 4,584, annual Rs. 55,008. As the age of the deceased was 26 years, multiplier of 18 has been applied. Thus, on account of loss of dependency Rs. 9,90,144 has been awarded. For loss of consortium Rs. 10,000 and for funeral expenses Rs. 2,000 have been awarded, thus, the total compensation of Rs. 10,02,144 has been awarded along with interest at the rate of 6 per cent per annum from the date of filing of claim petition till realisation. 50 per cent amount has been ordered to be paid to the widow, remaining 50 per cent amount to the parents of the deceased Samreen Sana.
6. In Claim Case No. 28 of 2004 learned Member, Claims Tribunal has found that simple injury was sustained by Tulsi Sarkar. No permanent disability has been incurred. There was no fracture as per X-ray report, Exh. P10. A sum of Rs. 3,861 has been awarded. Liability has been held to be joint and several of driver, owner and insurer of the bus.
7. M.A. Nos. 1961 and 1618 of 2006 have been preferred by the claimants for enhancement of compensation relating to death of Samreen Sana whereas Oriental Insurance Co. Ltd. has preferred M.A. No. 1321 of 2006 contending that finding as to negligence recorded by the Claims Tribunal is not correct. Permission was granted to raise all the defences. It is contended in the appeal that the driver of JCB machine was also negligent. It is a case of composite negligence, hence, liability has been wrongly saddled on the driver, owner and insurer of the bus; it should have been saddled on the driver, owner and insurer of JCB machine also.
8. Owner and driver of the bus have taken the stand in Claim Case No. 30 of 2004 that driver of the bus was not negligent. Driver of JCB machine turned the machine all of a sudden which was cause of the accident for which driver of the bus was not responsible; negligence was that of driver of JCB machine. Bus was going to Nagod. On the other side, dumper was standing. JCB machine was also stationary. As soon as he reached near JCB machine, it was turned all of a sudden and digging arm dashed the frontal portion of the bus which was cause of sustaining injuries by the deceased and the injured.
9. Oriental Insurance Co. Ltd., the insurer of the bus also denied the averments in Claim Case No. 30 of 2004. It is contended that excessive compensation has been claimed. Negligence was that of driver of JCB machine. Bus was not plied as per terms and conditions of the policy of insurance. Driver of bus was not having valid and effective driving licence. Similar stand was taken in Claim Case No. 28 of 2004.
10. The owner of JCB machine in the reply contended that JCB machine was stationary. The accident was caused by the driver of the bus who drove it in a rash and negligent manner. Owner and insurer of JCB machine contended that it was not clear whether the vehicle was insured with New India Assurance Co. Ltd. Driver of JCB machine was not negligent. Similar stand was taken in Claim Case No. 28 of 2004.
11. The parents of the deceased Samreen Sana in Claim Case No. 30 of 2004 contended that accident took place only a week after marriage of deceased. Widow is residing with her parents and not residing with her in-laws. Deceased used to earn Rs. 25,000 per month. With respect to the deceased a claim case was also pending at Raipur, as such present claim case was not maintainable.
12. Mr. Sanjay Agrawal, the learned Counsel for the insurer, Oriental Insurance Co. Ltd., has submitted that it is a case of composite negligence, thus, the finding which has been recorded as to negligence is perverse. Same deserves to be set aside.
13. Mr. Sunil Singh, learned Counsel for the claimant, widow of the deceased, has submitted that income of the deceased Samreen Sana has not been properly assessed. Only the basic salary has been taken into consideration for arriving at loss of dependency which method cannot be said to be correct, thus, the compensation be suitably enhanced.
14. Mr. Aditya Ahiwasi, learned Counsel for owner of JCB machine, has submitted that there was negligence of the bus driver. He came from behind and dashed the digging arm of JCB machine. JCB machine was stationary at the time of accident. Thus the finding of negligence which has been arrived at is proper.
15. Mr. Sanjay Sarvate, learned Counsel for parents of the deceased, has submitted that compensation which has been awarded is inadequate; same be suitably enhanced and proper apportionment be ordered duly considering the fact that the widow of the deceased is residing with her parents and has left the family.
16. After hearing the learned Counsel for the parties at length, after going through the evidence on record, deposition of the wit nesses and other documents on record, we first consider the question of negligence. Sumitra Sana, CW 1, the widow of the deceased Samreen Sana was also travelling in the same bus in which deceased was travelling. She has clearly stated that on right side there was dumper and on left side JCB machine was standing. All of a sudden the driver of JCB machine had turned the vehicle, she has volunteered to state that even the driver of the bus was not attentive, this she has stated in para 6 of the cross-examination. In para 12 she has stated both the things are correct that driver of JCB machine and driver of bus both were at fault, this she stated when she was confronted with the portion mentioned in an affidavit that bus dashed the stationary JCB machine. Ramsakha Chourasia, driver of the bus has been examined as NAW 3. He has stated that he drove the bus safely. All of a sudden the driver of JCB machine brought digging arm towards the road and dashed the bus which was the cause of accident. He was not at fault. He has further stated in cross-examination that he tried to turn the bus to the other side but could not avoid the accident. The driver of JCB machine has not been examined, however, the owner of JCB machine Ram Bihari Pathak, NAW 4, has been examined. He has stated that bus dashed the JCB machine from behind. He has witnessed the accident. There was no driver on the JCB machine at the relevant time, thus, he has stated that negligence was that of driver of the bus.
17. Considering the aforesaid evidence, we have no hesitation at all to discard the statement of Ram Bihari Pathak that JCB machine was stationary at the time when accident took place. It appears that it was in operation and bus had dashed the digging arm of JCB machine, bus came from behind, the bus was driven at an excessive speed, at the same time it appears that no arrangement was made to look after the operation of JCB machine, no effort was made to stop the bus or JCB machine. The method and manner in which accident has taken place indicates that to the large extent the negligence was on the part of driver of the bus Ramsakha Chourasia; it was necessary to maintain the safe distance from the JCB machine; when it was in operation the driver of the bus ought to have been careful. We find negligence to the extent of 75 per cent of driver of the bus and while operating hazardous machine like JCB machine due precaution was not taken, we hold negligence of 25 per cent of the driver of JCB machine. We have also considered the spot map which shows accident took place on left side of road which go to support the conclusion recorded by us as to negligence.
18. Coming to the question of quantum of compensation, it is not in dispute that age of the deceased was 26 years, claim petition has been filed by widow of deceased, parents were added as non-applicants; the deceased was senior engineer. He was in the service of Tata Telecom Service Ltd. at New Delhi. His payslip for the month of April 2004 indicates that his basic salary was Rs. 6,875, HRA was Rs. 4,125, education allowance Rs. 2,406, conveyance allowance Rs. 2,063; the total earning was Rs. 15,469. He was in receipt of net salary of Rs. 14,644. Certificate, Exh. C18 indicates that certain annual benefits also used to be received by the deceased. Annual performance pay was Rs. 34,375. There were other annual benefits to be contributed by the employer towards the retiral benefits. Out of the aforesaid amount we have to exclude the HRA of Rs. 4,125 which amount used to be paid towards rent due to actual occupation on rental premises; conveyance allowance has also to be deducted. Performance pay was depending on performance, it comes approximately to Rs. 2,800 per month. We consider it appropriate to consider the performance pay on an average to Rs, 2,000 per month. We have to include the basic salary at Rs. 6,875, education allowance at Rs. 2,406 and performance pay at Rs. 2,000 per month, thus, amount comes to Rs. 11,281 which we have to take into consideration for arriving at figure of loss of dependency; we are excluding the benefit of flexible benefit plan which used to be received annually; it was benefit plan not part of salary. Making 1/3rd deduction out of the aforesaid amount which amount deceased would have spent on himself had he been alive, loss of dependency comes to Rs. 7,520 per month, thus, loss of annual dependency would come to Rs. 90,240 (i.e., Rs. 7,520 x 12). Multiplier of 18 is applicable at the age of 26 years, we apply the said multiplier as the widow is one of the claimants, thus total compensation towards loss of dependency comes to Rs. 16,24,320 (i.e., Rs. 90,240 x 18) (rupees sixteen lakh twenty-four thousand three hundred and twenty). Parties have to make payment as per the extent of negligence. The compensation enhanced by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim application till realisation.
19. Coming to the question of apportionment between widow and parents of the deceased, we find that the death took place immediately after marriage. Parents are also claiming. It appears that other claim case was filed at Raipur. Mr. Sarvate the learned Counsel for parents stated that claim petition has been withdrawn as per his information but learned Counsel for the parties are not sure as to the outcome of the claim petition. The compensation determined by us is subject to the condition that no award has been passed in Raipur in the claim petition which was filed at Raipur. We apportion 50 per cent of compensation to the widow and 50 per cent to the parents. We find that apportionment made by learned Claims Tribunal is proper. The enhanced compensation shall also be apportioned in the same manner in the facts and circumstances of the instant case.
20. In M.A. No. 1874 of 2006 there is simple injury found on the person of Tulsi Sarkar. She was also travelling in the same bus. The amount of Rs. 3,861 which has been awarded by learned Claims Tribunal is found to be on lower side. We enhance it to Rs. 7,500 (rupees seven thousand five hundred). The compensation enhanced by us to carry interest at the rate of 6 per cent per annum from the date of filing of claim petition till realisation.
21. Resultantly, all the four appeals are allowed in part to the aforesaid extent. Parties to bear their own costs as incurred.