^^ '^ I "" . 'i '? \^. ^ <(5 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Miscellaneous Appeal (0 No.955 of 2009 ..^ Dev Kumar Nagrachi and others versus M. Subba Rao and others ORDER Postfor^ ^--07-2011 Sd/- R.S. Sharma Judge ^ "^..- ^^i-h ^ / - "•"" ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice Radhe Shvam Sharma Miscellaneous Appeal (Cl No. 955/2009 ^ APPELLANTS CLAIMANTS 1. Dev Kumar Nagrachi, S/o. Shri Kriparam Nagrachi, aged about 32 years, (Husband ofthe deceased) 2. Bhusanlal Nagrachi, S/o. Dev Kumar Nagrachi, aged about 11 years (Minor son of the deceased 3. Ku. Sevati Nagrachi, D/o. Shri Dev Kumar Nagrachi, aged about 8 years, (Minor daughter of the deceased) 4. Naresh Kumar Nagrachi, S/o. Shri Dev Kumar Nagrachi, aged about 6 years, (Minor son of the deceased) (Appellant No. 2 to 4 being minor on behalf of through their legal guardian father appellant No.1 Dev Kumar Nagrachi S/o. Kripa Ram Nagrachi) All R/o. Village Post Potiyadih, Police Station Arjuni, Tahsil & District Dhamtari (CG) Respondents Vs. 1. M. Subba Rao, S/o. Shri Gopal Swami, aged about 42 years, Occupation Vehicle Driver, R/o.- C/o. T. Naidu, S/o. T. Appa Rao Chhindu, M/s. Naidu Brothers Transport, Through B. Shrinivash S/o. B.R. Rao, R/o. Vasundhra Nagar, Bhilai- 3 Tahsil Bhilai 3, District Durg (CG) (Driver of vehicle Trailer Tanker Truck bearing registration No. A.P.31X/6264) 2. T. Naidu S/o. T. Appa Rao Chhindu, Occupation - Vehicle Owner, R/o. M/s. Naidu Brothers Transport, Through B. Shrinivash S/o. B.R. Rao, R/o. Vasundhra Nagar, Bhilai- 3 Tahsil Bhilai 3, District Durg (CG) (Registered Owner of vehicle Trailer Tanker Truck bearing registration No.A.P. 31 X/6264) \^ 3. The Oriental Insurance Company Limited, through Divisional Manager, Divisional Office, The Oriental Insurance Company Limited, Jail Road, Kutchery Chowk, Madina Building, Raipur, Tahsil and District Raipur (CG) (Insurer of vehicle Trailer Tanker Truck bearing registration No.A.P. 31 X/6264) Appeal under Section 173 of the Motor Vehicles Act. Present: Shri Shivendu Pandya, counsel for the appellants. Shri SudhirAgrawal, counsel for respondent No.3. None for respondents 1 & 2. ORDER (Passed on ^.^ July, 2011) This appeal has been filed by the claimants against impugned award dated 25th July, 2008 passed by 9th Additional Motor Accidents Claims Tribunal (FTC), Raipur in Claim Case No. 107/2007. 2. Respondent No.S/Oriental Insurance Company Limited has filed cross- objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908. The appeat filed by the claimants and the cross-objection filed by the insurance company are decided by this common order. 3. Brief facts of the case are that appellant No.1 is husband of deceased Khemin Bai and appellants 2 to 4 are sons and daughter of the deceased. They preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.9,50,000/-. On 14th March, 2007, at about 11 a.m., appellant No.1 along with the deceased was going to Village Potiyadih in his Motor Cycle (CG-05 B/8576) driven by him. When they reached near a liquor shop in Mana Basti, a trailer tanker truck bearing v^ registration No. A.P. 31 X/6264, being driven by respondent No.1 M. Subba Rao rashly and negligently, dashed the motor cycle of appellant No.1, as a result ofwhich, the deceased sustained severe injuries and died on the spot. First Information Report (Ex.P-2) was lodged in Police Station Mana Camp, where an offence was registered against respondent No.1 driver ofthe truck. Respondent No.2 was the registered owner of the truck and respondent No.3 was the insurer of the truck. Deceased Khemin Bai wasaged about 26 years at the time of accident and she was engaged in sewing work, in which she used to earn Rs.100/- per day and her monthly income was Rs.3000/-. 4 . On the basis of the claim petition and the written statement, issues were framed by the Tribunal and after affording opportunity to adduce evidence, the Tribunal awarded compensation of Rs.3,30,750/- in favour of the appeltants/claimants fastening liability upon respondents 1 to 3, i.e., driver, owner and insurer of the truck to satisfy the award jointly or severally. 5. Shri Shivendu Pandya, learned counsel appearing for the appellants argued that the Tribunal has erred in awarding compensation. The learned Tribunal erred in disbelieving the evidence adduced by the claimants and failed to appreciate the facts and circumstances of the case. The learned Tribunal has not assessed the monthly income of deceased Khemin Bai properly. The learned Tribunal has granted only Rs.2,000/- towards funeral expenses which is not just. Learned Tribunal was also not justified in awarding compensation towards love and affection and consortium. Therefore, the compensation awarded by the Tribunal is notjust and proper. 6. On the other hand, Shri Sudhir Agrawal, learned counsel for respondent No.S/lnsurance Company submits that the accident took place due to head on collision. Hence, negligency of appellant No.1, who was driving the motor cycle, to the accident should be held 50%, but the Claims Tribunal has wrongly assessed negligency of appellant No.1 to the accident only to the extent of 25%. The Claims Tribunal has applied excessive multiplier and it has wrongly assessed the income of the deceased to be Rs.36,000/- per annum. Appellant No.l/claimant Dev Kumar Nagrachi was driving the motor cycle having got ridden more than twopersons on it, which is illegal. Hence, the appellants/claimants are not entitled for compensation. On these pleadings, learned counsel for respondent No.S/insurance company claimed that respondent No.S/insurance company was notliable to satisfy the impugned award. Learned counsel placed reliance on Vijay Kumar Dugar vs. Vidyadhar Dutta and others, AIR 2006 SC 1255. 7. On the basis of the claim petition and the written statement, issues were framed by the Claims Tribunal and after affording opportunity to adduce evidence and hearing arguments, the Claims Tribunal held that Appellant No.l/claimant Dev Kumar Nagrachi was also negligent in driving the motor cycle and his contribution to the accident was to the extent of 25% and accordingly, awarded compensation of Rs.3,30,750/- in favour of the appellants/claimants fastening liability upon respondents No.1, 2 and respondent No.S/objector Oriental Insurance Company Limited to satisfy the award jointly or severally. ^G c)\ 8. I have heard learned counsel appearing for the parties and perused the impugned award as also the evidence available on record. The Claims Tribunal has held in paragraphs 13 and 14 of the impugned award that Appellant No.l/claimant Dev Kumar Nagrachi was also liable for contributory negligence to the extent of 25%. 9. I have perused the spot-map (Ex. P-8) and evidence of Appellant No.l/claimant Dev Ktfmar Nagrachi (AW-1). Appellant No.l/claimant Dev Kumar Nagrachi (AW-1) has stated that the truck-was coming from the direction where the road was dug. He has also stated that he himsetf, his wife and two minor children, aged about 6 and 8 years, were riding on the motor cycle. From the evidence of Appellant No.l/claimant Dev Kumar Nagrachi (AW-1), it is evident that apart from this witness, his wife (the deceased) and two minor children were atso riding on the motor cycle. Merely because two minor children, aged about 6 and 8 years, were riding on the motor cycle, it cannot be held that four persons were riding on the motor cycle. In the circumstance, it cannot be held that the extent of negligence of Appellant No.l/claimant Dev Kumar Nagrachi to the accident was 50%. J 10. In Andhra Pradesh State Road Transport Corporation and another vs. K. Hemlatha and others, (2008) 6 SCC 767, the Hon'ble Supreme Court / has held thus: "14. "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each 6 ^ wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby* avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error. The above position was highlighted in T.0. Anthony v. Karvarnan, (2008) 3 SCC 748, SCC pp. 750-51, paras 6-7." ^ <? 11. From the above principle laid down by the Hon'ble Supreme Court and the evidence ofAppellant No.l/claimant Dev Kumar Nagrachi (AW-1) in the instant matter, it is evident that the negligence of Appellant No-1/claimant Dev Kumar Nagrachi to the accident was to the extent of25% only and the finding arrived at by the Claims Tribunal in this regard is just and proper. 12. The Claims Tribunal, on closed scrutiny of the evidence available on record, assessed the income of the deceased to be Rs.36,000/- per annum and deducted 1/3rd of her annual income towards her personal and living expenses and accordingly, assessed annual loss of dependency to be Rs.24,000/- per annum. The Tribunal assessed the age of the deceased to be 26 years and applied multiplier of 18, which is just and proper. 13. For the foregoing reasons, the appeal preferred by the appellants/claimants and the cross-objection preferred by respondent No.S/insurance company are liable to be and are accordingly dismissed. No order as to costs. ——^ T,— R.S. Sharma Judge Bini/Gopal