Rajasthan High Court - Jodhpur
Smt. Anju & Anr vs Delhi Panipat Golden Transport Co & Anr on 26 November, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO. 177/2002
Smt. Anju & Ors.
Vs.
Delhi Panipat Golden Transport Co. & Anr.
Date of Judgment :: 26.11.2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Rajesh Panwar, for the appellants.
Mr. Mahesh Thanvi, for the respondent No.2.
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BY THE COURT:
This appeal is directed against the judgment and award dated 14.1.2002 passed by Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby the application for compensation filed by the appellants for death of one Babu Khan has been rejected.
The facts in brief may be noticed thus : deceased Babu Khan aged about 28 years was traveling in a mini-bus from Loonkaransar to Sardarshahar when, it is alleged that a truck from the opposite direction, which was being driven rashly and negligently by its driver collided with the bus, resulting in injuries to several passengers in the bus and death of Babu Khan, passenger in the mini-bus. The driver of the truck also died on account of the said accident. It was claimed that the deceased was involved in agriculture operations and used to earn 2 Rs.50,000/- per year and claimed compensation to the tune of Rs.19,50,000/-. The application was filed only against the owner of the truck and its Insurance Company.
A reply to the application was filed by the respondent No.1, owner of the truck and it was alleged that the accident occurred on account of rash and negligent driving by the driver of the bus and, owner and driver of the bus were necessary parties, as they have not been impleaded as parties to the application, the application was liable to be dismissed. However, it was submitted that in case any compensation is to be paid, the same is required to be paid by the Insurance Company.
The respondent No.2 -Insurance Company also filed its reply to the application, admitted the insurance and disputed the compensation claimed by the claimants and the negligence of the truck driver.
The Tribunal framed six issues. On behalf of the claimants, Smt. Anju and one Jetha Ram, who was traveling in the said ill- fated mini-bus appeared as witness for the claimants. No evidence was produced by the Insurance Company.
The Tribunal, after hearing the parties, came to the conclusion that from the documents relating to the criminal case produced by the claimants, it is apparent that the accident occurred on account of negligence on part of the mini-bus driver and as the driver and owner of the mini-bus were not impleaded as parties, the issue of negligence of the truck driver and absence of necessary parties were decided against the claimants. The Tribunal assessed the income of the deceased at Rs. 2,250/- 3 per month and after deducting Rs. 5,000/- annually as his personal expenses employed multiplier of 18 and found the loss of income at Rs. 3,96,000/-, awarded compensation for love and affection at Rs. 10,000/- to the mother and Rs. 5,000/- each to the children and further awarded Rs. 5,000/- as funeral expenses. However, Smt. Anju, wife and one of the daughters Kumari Khushbu were not awarded compensation for loss of love and affection and the Tribunal come to the conclusion that the wife had entered into 'ATKHANI' (betrothal) with Salim her brother-in-law and as Kumari Khushbu was not a daughter of the deceased Babu Khan. However, on account of its finding on issue of negligence and necessary party, the claim petition was dismissed and the Insurance Company was held entitled to recover back the amount paid by it under Section 140 of the Motor Vehicles Act, 1988 ('the Act').
It is submitted by learned counsel for the appellants that the finding recorded by the Tribunal is ex-facie perverse and is a result of misreading of the documents and wrong application of law and consequently, the judgment impugned deserves to be set-aside and the appeal deserves to be allowed.
It was submitted that, admittedly the deceased was a passenger in the mini-bus and irrespective of the fact as to whether the accident occurred on account of negligence by the bus driver or the truck driver, the claimants were entitled to maintain the application against any of the tortfeasors and therefore, the Tribunal committed grave error of law in dismissing the application.
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Reliance was placed on judgment of Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors. : 2008 ACJ 1165.
On the other hand, it was submitted by learned counsel for the respondent No.2 Insurance Company that the judgment impugned does not call for any interference and the application was rightly rejected by the Tribunal based on the evidence available on record.
I have considered the rival submissions.
Admittedly, the deceased was a passenger in mini-bus and was traveling from Loonkaransar to Sardarshahar, when the said mini-bus met with an accident with the truck bearing No.DL- 1GA-7345 resulting in the death of Babu Khan, the passenger in the mini-bus and the driver of the truck.
The Tribunal while considering the documents filed by the claimants being FIR (Ex.-1), charge-sheet (Ex.-2), site map (Ex.-3) etc., came to the conclusion that the FIR was filed alleging the rash and negligent driving by the bus driver and the challan was also filed against the bus driver as there was no negligence on part of the driver of the truck. Based on the said two documents i.e. FIR and the challan, it discarded the oral evidence of Jetha Ram (AW-2) and recorded a finding that the accident occurred on account of rash and negligent driving by the driver of the bus and, the owner and driver of the bus were necessary parties to the application.
A bare reading of the challan (Ex.-2) reveals that though the police came to the conclusion that besides the driver of the mini-bus, the driver of the truck was also liable to be proceeded 5 against, however, as the said driver of the truck had died, the challan was being filed only against the driver of the bus, to the said extent, there is apparent misreading of the documentary evidence by the trial court.
So far as the statement of Jetha Ram is concerned, his statement was quite categorical regarding the negligence of the truck driver. The presence of Jetha Ram in the bus also cannot be disputed as his name appears in the challan papers and as he has been cited as a witness.
Consequently, in view of the categorical oral evidence of Jetha Ram coupled with the fact that the challan was in-fact proposed against both the drivers, however, on account of death of driver of the truck, the same was only filed against driver of the mini-bus, the finding recorded by the Tribunal regarding negligence of the bus driver alone cannot be sustained and the same is, therefore, set-aside.
Even if, the case of the respondents, owner and the insurance company is taken on the face value regarding negligence of both the vehicles, the claimants were entitled to maintain the application for compensation even in absence of owner and driver of the bus, even as per the case of the respondents, it would be a case of composite negligence only.
The Hon'ble Supreme Court in the case of T.O. Anthony observed and held as under:-
"6. 'Composite negligence' refers to the negligence on the part of the 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 composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the 6 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 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 stand reduced in proportion to his contributory negligence."
The above law laid down by the Hon'ble Supreme Court conclusively provides that in a case of composite negligence each wrongdoer is jointly and severally liable to the injured for the payment of the entire damages and the injured persons have a choice of proceeding against all or any of them.
In view of the above law laid down by the Hon'ble Supreme Court, it cannot be said that the owner and driver of the mini- bus were necessary parties and the application could not be maintained in absence of the said parties.
So far as award of compensation is concerned, Smt. Anju, wife of the deceased has simply stated that her husband used to give her Rs. 4,000/- per month for house hold expenses. She has also stated that her husband used to undertake agriculture operations and was a labourer.
Mr. Jetha Ram AW-2 has stated that Babu Khan used to do labour work with him.
In view of the above, it is apparent that the deceased Babu Khan was involved in the work as labourer only.
The Tribunal has assessed the income of the deceased at 7 Rs. 60/- per day / Rs. 1,800/- per month and after adding 25% towards future prospects has assessed the monthly income of Rs. 2,250/- and annually at Rs. 27,000/-. Looking at the minimum wages as applicable at the relevant time i.e. in the year 1998, which was at Rs. 50/- per day even for skilled labour, it cannot be said that the income assessed was on the lower side.
So far as the deduction of Rs. 5,000/- is concerned, the same also does not appear to be excessive in view of the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation & Anr. : (2009) 6 SCC 121. The multiplier of 18 also does not require any interference.
So far as award of compensation to the appellant No.1 Smt. Anju and appellant No.7 Miss Khushbu is concerned, the Tribunal on account of the statement of AW-1 Smt. Anju that though she has not married Salim her brother-in-law, there has been 'ATKHANI' between them and the child i.e. Khushbu is from him denied the compensation to them. Merely because the widow has alleged remarried, cannot be a ground for denying a share of compensation to her, however, the same have implication while bifurcating the amount of compensation between the parties. The finding regarding the parentage of Khushbu on a mere one line statement also does not appear to be justified.
Consequently, the judgment dated 14.1.2002 passed by the Tribunal is modified to the extent that findings on issues No.1 and 3 recorded by the Tribunal are reversed and the finding 8 on question of compensation at Rs. 3,96,000/- for loss of income is upheld. However, the appellant No.1 Smt. Anju and appellant No.7 Miss Khushbu would also be entitled to a sum of Rs. 5,000/- each towards loss of consortium / loss of love and affection. The compensation to rest of the appellants for loss of love and affection and the amount of funeral expenses does not call for any interference. As a result, the appellants would be entitled to a compensation of Rs. 4,41,000/-. The appellants would also be entitled for interest @ 6% p.a. from the date of application i.e. 3.12.1999 on the said amount of compensation. All the appellants-claimants would be entitled to equal amount of compensation i.e. Rs. 63,000/- each alongwith interest as directed here-in-before.
The appeal is accordingly partly allowed with the direction above noted.
(ARUN BHANSALI), J.
rm/