® 0032s” _<=mn. > 3. zo. N3 2 ncoh §@w£@&@m%m§§mw &.§T%3 §§$ iaam § §§K~§i§¢w§ NEHBNE $& §§A§§V <¢wm=m mmmqg'mm‘agiAmOOOAbv $§§$&.§§\§m% EA g Ea aaav 43E2$ @343 adj. wig ww ma i§$§§2§§&& §i%.§‘§%$& £§§$ $§§§ §§§3 Na £4 ME «a. E «a. g Wm: gag §$§§Hi~§§§ a gngmgy £§§w§ gag I5... 00C”... O." OII>._.._._mm>ZI“ w=l>mvcz $03.35 my:m::=x532. mmsgm. . x hw‘i" \{y‘r 2 M A7 Nn. 764 of2004 Z 3 Misc APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES w Apgéarance: , iMr. Shashi Kumar Kushwaha, Advocate for the ‘ appellants/claimants. ~ 3 Mr Dashrath Gupta Advocate forrespondent1 Mr Rahul Mlshra Advocate for respondents 2 & 2 A (1) to (4) ORAL-ORDER (25.09.2010) Following order of the Court‘ was passed by Sun1il Kumar Sinha, J. , u - (1) The appel|ants/claimants, unfortunate parents, sister and brother of deceased- Birendra Kumar, have filed this appeal for enhancement of cornpensation awarded in Claim Case No. 57/2002 by the Additionai Motor Accident Claims TribunaL Baikunthpur (Korea). (2) Appellants/claimants filed a Claim Petition u/s 166 of the Motor vehicles Act claiming compensation ef Rs.26,3.4,000/— for the death of deceased- Birendra Kumar in the motor accident which took place on 23.6.2000, when the scooter, on which, the deceased was traveling as pillion rider was dashed by offending vehicle tractor-trolley bearing’ registration No._ MP—027—B/3650 & MP-027-B/3651 ‘on account of rash and negligent driving of the driver of the tractor. Admittedly, the deceased was aged about 24 years. The appellants pleaded that deceased- Birendra Kumar was earning Rs.4,000/— — 5,000/— per month by doing the work of skilled labour, as he was a Welder. ‘vx (3) The Tribunal, on a close scrutiny of evidence led before it, held that the accident occurred on account of contributory negligence of the drivers of both the vehicles. lt was further held that the drivers of both the \\ \ 3 M A Nn. 764 of2004 vehicles were contributed to the extent of 50% in the said accident. Since no clinching evidencewas produced to prove the income of the deceased, the Tribunal resorted to the provisions of Section 163-A and held the income of the deceased as Rs.15,000/— per annum on the basis of notional income prescribed in Second Schedule. under Section 163-A. The Tribunal deducted 1/3“ towards the personal expenses of the deceased and the dependency of the claimants was worked out to V; %%f Rs.10,000/— annual dependency per annum. of Rs.10,000/— The Tribunal and applied the compensation multiplier of was 17 worked to the said out to Rs.3,70,000/—. The Tribunal further awarded Rs.2,500/— as funeral expenses and the total amount of compensation was worked out to Rs.1,72,500/—. The Tribunal, held that since it was a case of contributory negligence and the drivers of both thevehicles were liable to the extent of 50%, therefore, the Tribunal deducted 50% from the said amount and a sum or Rs.86,250/— was awarded to the claimants as compensation for the death of deceased- Birendra Kumar in the motor accident. The Tribunal also awarded interest at the rate of 9% per annum from the date of tiling of the Claim Petition till the date of actual payment. a (4) Mr. Shashi Kumar Kushwaha, learned counsel appearing on behalf of the appellants, argues that the Tribunal completely erred in law in holding that it was a case of contributory negligence. His submission is that the deceased was not driving either of the vehicle, therefore, he has not contributed to thenaccident and for the deceased it was a case of composite negligence on the part of drivers of both the vehicles. Besides the above, he also argues that the income of the deceased has not been \ 4 M.A‘ No. 764 of2004 3! properly assessed. He prays for suitable enhancement in the amount of compensation awarded to the appellants/claimants. (5) On the other hand, Mr; Dashrath Gupta & Mr. Rahul Mishra, learned counsel appearing on behalf of the respective respondents, opposed these arguments and supported the award passed by the Claims Tribunal. (6) ‘1 We have heard the learned counsel for the parties at length and V . have also perused the records of the claim case. (7) ln‘T.O. Anthonz —Vs- Karvarnan and Others, (20082 3 SCC 748, the .Supreme Court held that in an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of both the vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the “composite negligence" of all the drivers, but about the “contributory negligence” of the driver concerned. The same view was reiterated by the Supreme Court in Andhra Pradesh State Road Transport Corporation and Another —Vs- K. Hemlatha and Others, (20082 6 SCE‘767. (8) Therefore, thef‘Composite Negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of 5 M.A. No. 764 of 2004 negligence on the part of two or more wrongdoers, it would be a case of “composite negligence" of those wrongdoers. The Supreme Court held in T.O.; Anthony (supra) that in such a case, each wrongdoer would be 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. ln such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the courtutg determine the extent of liability of each wrongdoer separately. (9) Therefore, the present was a case of “composite negligence” on the part of the driyers of both the vehicles and the appellants/claimants had a choice of proceeding against all or any of them. ln the present case, they have availed their choice against the owner and insurer of the tractor-trolley who would be jointly and severally liable to pay entire compensation on account of “composite negligence” and the Tribunal erred in law in making deduction on the basis of liability of the driver of the scooter to the extent of 50%. Therefore, the above finding of contributory negligence and deduction on the said finding made by the Tribunal is set—aside. (10) So far as quantum of compensation is concerned, the claimants completely failed to establish that the deceased was earning Rs.4,000/- - 5,000/— per month. Therefore, the Tribunal was right in resorting to the provisions of notional income prescribed in the Second Schedule. The said notional income was prescribed in the year 1994. Looking to the rise of prices of the Essential Commodities and the cost of living in between 1994 to 2000, we hold that the said notional income of Rs.15,000/— can MVA‘ No. 764 of 2004 @ 6 be taken as Rs.24,000/—. Therefore, we propose to re-compute the compensation by holding the annual income of the deceased as Rs.24,000/—. (11) Admittedly the claimants are parents, brother and sister of the deceased, who were aged about 52, 47, 20 & 18 years. The deceased was unmarried. ln view of the Judgment of Szed Basheer Ahamed and Others —Vs- Mohammed Jameel and Another, (20092 2 SCC 225, in whichkit has been held that’the general rule regarding deduction from the income of the deceased is 50%, if he is bachelor and one—third if he is married, we deduct 50% from the annual income of the deceased and the dependency works out to Rs.12,000/—. Since the claimants are parents, the multiplier in this case would not be more than 10. (12) By multiplying the annual dependency of Rs.12,000/— with the multiplier of 10, compensation works out to Rs.1,20,000/—. By adding further sum of Rs.10,000/— under other permissible heads, the total amount of compensation works out to Rs.1,30,000/—. The Tribunal has already awarded Rs.86,250/—. By deducting this amount from Rs.1,30,000/—, the balance of amount comes to R§.43,750/— which the appellants/claimants are entitled to receive as the enhanced amount of compensation for the death of deceased- Birendra Kumar in the motor accident (13) To avoid further complications and looking to the delay caused in disposal of the Claim Petition as also the claimants’ appeal and that the Insurance Company alone cannot be blamed'for such delay, we deem it 7 / v M A No, 764 of2004 appropriate to quantify the interest, which we quantify as Rs.4,250/- in this matter. (14) t Therefore, the appellants/claimants are entitled to receive a sum of Rs.48,000/— more (Rs.43,750/— as the balance amount of compensation and :Rs.4,250/- as the quantined interest on the balance amount) which 1 theyishall receive from the Insurance Company/respondent No.1. No.1 is granted 3 months time \' (1 5)l The Insurance Company/respondent _ a ‘ Tribunal. to deposit the aforesaid amount before the concerned Claims (16) The appeal is allowed to the extent indicated above. (17) There shall be no orders as to the cost. I / tr Sd/' . ~_ i gafif‘ " Sal- , ”T T Shanwar s ‘ Sunil liulgngaer Sm}? RAJ. Ju/d/gs/ [k t ’ 7 e , ,