Gujarat High Court
Gujarat State Road Transport ... vs Lhr Of Decd Chandkhan Ladjimiya Pathan ... on 30 August, 2024
NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 327 of 2023
With
R/CROSS OBJECTION NO. 202 of 2024
In
R/FIRST APPEAL NO. 327 of 2023
With
R/FIRST APPEAL NO. 345 of 2023
With
R/FIRST APPEAL NO. 331 of 2023
With
R/FIRST APPEAL NO. 333 of 2023
With
R/FIRST APPEAL NO. 334 of 2023
With
R/FIRST APPEAL NO. 340 of 2023
With
R/FIRST APPEAL NO. 341 of 2023
With
R/FIRST APPEAL NO. 342 of 2023
With
R/FIRST APPEAL NO. 344 of 2023
With
R/FIRST APPEAL NO. 346 of 2023
With
R/FIRST APPEAL NO. 347 of 2023
With
R/FIRST APPEAL NO. 348 of 2023
With
R/FIRST APPEAL NO. 349 of 2023
With
R/FIRST APPEAL NO. 357 of 2023
With
R/FIRST APPEAL NO. 358 of 2023
With
R/FIRST APPEAL NO. 359 of 2023
With
R/FIRST APPEAL NO. 360 of 2023
With
R/FIRST APPEAL NO. 361 of 2023
With
R/FIRST APPEAL NO. 362 of 2023
With
R/FIRST APPEAL NO. 366 of 2023
With
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
R/FIRST APPEAL NO. 367 of 2023
With
R/FIRST APPEAL NO. 372 of 2023
With
R/CROSS OBJECTION NO. 180 of 2024
In
R/FIRST APPEAL NO. 372 of 2023
With
R/CROSS OBJECTION NO. 183 of 2024
In
R/FIRST APPEAL NO. 360 of 2023
With
R/CROSS OBJECTION NO. 187 of 2024
In
R/FIRST APPEAL NO. 359 of 2023
With
R/CROSS OBJECTION NO. 185 of 2024
In
R/FIRST APPEAL NO. 361 of 2023
With
R/CROSS OBJECTION NO. 178 of 2024
In
R/FIRST APPEAL NO. 362 of 2023
With
R/CROSS OBJECTION NO. 175 of 2024
In
R/FIRST APPEAL NO. 366 of 2023
With
R/CROSS OBJECTION NO. 174 of 2024
In
R/FIRST APPEAL NO. 367 of 2023
With
R/CROSS OBJECTION NO. 186 of 2024
In
R/FIRST APPEAL NO. 358 of 2023
With
R/CROSS OBJECTION NO. 190 of 2024
In
R/FIRST APPEAL NO. 331 of 2023
With
R/CROSS OBJECTION NO. 176 of 2024
In
R/FIRST APPEAL NO. 334 of 2023
With
R/CROSS OBJECTION NO. 189 of 2024
In
R/FIRST APPEAL NO. 357 of 2023
Page 2 of 71
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
With
R/CROSS OBJECTION NO. 179 of 2024
In
R/FIRST APPEAL NO. 347 of 2023
With
R/CROSS OBJECTION NO. 192 of 2024
In
R/FIRST APPEAL NO. 349 of 2023
With
R/CROSS OBJECTION NO. 184 of 2024
In
R/FIRST APPEAL NO. 340 of 2023
With
R/CROSS OBJECTION NO. 193 of 2024
In
R/FIRST APPEAL NO. 348 of 2023
With
R/CROSS OBJECTION NO. 182 of 2024
In
R/FIRST APPEAL NO. 346 of 2023
With
R/CROSS OBJECTION NO. 173 of 2024
In
R/FIRST APPEAL NO. 345 of 2023
With
R/CROSS OBJECTION NO. 177 of 2024
In
R/FIRST APPEAL NO. 344 of 2023
With
R/CROSS OBJECTION NO. 188 of 2024
In
R/FIRST APPEAL NO. 342 of 2023
With
R/CROSS OBJECTION NO. 191 of 2024
In
R/FIRST APPEAL NO. 341 of 2023
With
R/CROSS OBJECTION NO. 181 of 2024
In
R/FIRST APPEAL NO. 333 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH
CHAIRMAN
Versus
LHR OF DECD CHANDKHAN LADJIMIYA PATHAN SIPAI & ORS.
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1.1,1.2,1.3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 30/08/2024
COMMON ORAL JUDGMENT
1. The present First Appeals, under Section 173 of the Motor Vehicles Act, 1988, are preferred by the appellant- insurance company, being aggrieved and dissatisfied with the impugned common judgment and award dated 29.9.2021 passed by the Motor Accident Claims Tribunal, Patan, as shown in the table below, by which the learned Tribunal has awarded compensation to the claimants as stated in the impugned judgment and award to the claimant/s, holding the Page 4 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined opponent nos.1 to 4 liable to pay the compensation and exonerating the opponent no.5-insurance company. The cross- objections are filed by the claimants praying for enhancement of compensation.
Sl. FIRST APPEAL MACP CROSS-OBJECTION NOs.
No. NOs. NOs.
1 360 of 2023 166 of 2013 183 of 2024
2 359 of 2023 165 of 2013 187 of 2024
3 361 of 2023 171 of 2013 185 of 2024
4 362 of 2023 172 of 2013 178 of 2024
5 366 of 2023 289 of 2013 175 of 2024
6 367 of 2023 290 of 2013 174 of 2024
7 358 of 2023 158 of 2013 186 of 2024
8 331 of 2023 132 of 2013 190 of 2024
9 334 of 2023 134 of 2013 176 of 2024
10 357 of 2023 157 of 2013 189 of 2024
11 347 of 2023 145 of 2013 179 of 2024
12 349 of 2023 147 of 2013 192 of 2024
13 340 of 2023 137 of 2013 184 of 2024
14 348 of 2023 146 of 2013 193 of 2024
15 346 of 2023 144 of 2013 182 of 2024
16 345 of 2023 143 of 2013 173 of 2024
17 344 of 2023 141 of 2013 177 of 2024
18 342 of 2023 139 of 2013 188 of 2024
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
19 341 of 2023 138 of 2013 191 of 2024
20 333 of 2023 133 of 2013 181 of 2024
21 372 of 2023 40 of 2014 180 of 2024
(withdrawn by
learned advocate
before this Court)
22 327 of 2023 129 of 2013 202 of 2024
2. As common question of facts and law are involved in the present first appeals and cross-objections, with the consent of learned advocates for the parties, all these appeals and cross-objections are disposed of by this common judgment. The parties are referred to as per their original status before the learned Tribunal for the sake of convenience.
3. Learned advocate Mr.Shah for the appellant, upon instructions, seeks permission to withdraw the Cross-objections No.180 of 2024. Permission as prayed for is granted. The said cross-objections be disposed of as withdrawn.
4. Brief facts of the case are as under:
4.1 The claimants filed the claim petitions stating that the deceased/injured and other persons were going on 30.1.2013 from Gilosan in Tata Ace bearing registration No.GJ.2Z.4699, Page 6 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined which is generally known as ' Chhota Hathi', (for short, 'Chhota Hathi') from Varahi to Bamroli and went to Dargah and after finishing the religious procedure, they were coming back in the above mentioned Chhota Hathi back to Gilosan, at that time, the said vehicle was being driven on the side of the road; at that time, the driver of ST Bus No.GJ.18.Y.1825 came from Himmatnagar-Radhanpur with his bus driving the same in a rash and negligent manner and dashed with the chhota hathi on the Harij-Sami road near Jilvana village and caused serious accident, wherein some persons died and some suffered grievous injuries. Therefore, the claim petitions were filed by the claimants claiming compensation.
4.2 Upon service of notice to the opponents, the opponent nos.1,2,4 and 5 appeared and filed their replies denying the contents of the claim petitions and also denying their liability to pay the compensation. Thereafter, the learned Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petitions by awarding compensation as mentioned in the impugned judgment and award.Page 7 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined 4.3 Being aggrieved and dissatisfied with the impugned judgment and awards passed by the Tribunal, the present appeals are preferred by the GSRTC and the cross-objections are filed by the claimants.
5. Heard learned advocates for the parties. 5.1 The impugned judgment and awards are assailed mainly on the grounds of negligence and quantum. 5.2 Learned advocate Mr.Munshaw for the appellant-GSRTC has contended that the present appeal is filed on the ground of negligence which is attributed to the ST bus at 70% and 30% to the other vehicle, which is not in accordance with the material available on the record; that since the Tata Ace ('chhota hathi') was carrying more than 40 passengers in the vehicle and has come on the wrong side and as per the deposition of the driver of the Tata Ace vehicle as well as the photographs available on the record and also as per the deposition of the driver of ST bus and from the panchanama and other evidence, it clearly establishes that in the said chhota hathi vehicle, more than 40 persons were travelling and thereafter due to burst of tyre of that vehicle, the said vehicle came on wrong side and dashed with the ST bus and therefore, the ST bus cannot be held negligent for the Page 8 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined accident; that though all the contentions and all the material is produced before the learned Tribunal, the learned Tribunal has attributed 70% negligence to the ST bus and 30% negligence to the Chhota Hathi, which is apparently unjustified and illegal. He has submitted that from the photographs also, it clearly transpires that the accident has occurred due to sole negligence of the chhota hathi. He, therefore, prays that no negligence can be attributed to the ST bus and ST bus cannot be dragged in by directing the ST bus to pay the amount of compensation only on the ground that ST bus is bigger vehicle in size though the ST bus has not contributed anything in occurrence of accident and no negligence can be attributed to the ST bus. He has further submitted that even the charge-sheet is filed against the driver of the Chhota Hathi and that the person who has filed the complaint has given actual deposition who should be considered as the witness and in his statement before the police, he has submitted that the accident has occurred due to negligence of Chhota Hathi, thereafter, he has changed his version which clearly indicates that the accident has occurred due to sole negligence of Chhota Hathi and therefore, he prays to allow this appeal on the ground of negligence. 5.3 Furthermore, he has submitted that on the ground of quantum, the compensation awarded by the learned Tribunal Page 9 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined is on a very high side as there is no evidence to establish the age of the respective claimants as no other material like medical papers which is conclusive proof are produced and death caused due to the accident and there is no sufficient material about the income of the respective claimants. Therefore, the amount which is awarded by the learned Tribunal, in some cases, are on higher side and therefore he prays to consider the same by considering the settled legal position of law and pass appropriate order on the aspect of quantum as the amount awarded under various heads which is, as per his submission, on higher side required to be reduced to some extent. He, therefore, prayed to allow these appeals as the learned Tribunal has committed error on the ground of contributory negligence of the ST corporation as well as also not properly calculated the amount of compensation which is ex-facie on higher side.
6. Learned advocate Mr.Shelat appearing for the respondent no.5 has submitted that the learned Tribunal has exonerated the insurance company from the liability to pay the amount on the ground that there are more than 40 persons travelling in the chhota hathi and therefore he cannot be fastened with any liability and there is no chance to pass any award against him as, considering the admitted fact that at the time of accident, in chhota hathi about 40 Page 10 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined persons were travelling and therefore there is clear breach of the terms of policy and therefore the company is rightly exonerated and on the aspect of quantum, the Court may consider appropriate aspects and may pass appropriate order as his company is not liable to pay any amount of compensation.
7. Learned advocate Mr.Shah appearing for the respondents/claimants have submitted firstly on the aspect of negligence that the principle of res ipsa loquitor is required to be considered in the proper context in the facts and circumstances of the case. He has submitted that though the driver of the ST bus has deposed before the learned Tribunal but the ST driver-Jagatsinh Kalsinh Rathod who was examined at Exh.188 and the ST bus conductor-Chavda Nathekhan Muradkhan deposed at Exh.189 have clearly stated that at the time of accident, they have seen the Chhota hathi from the long distance but driver could not see how many passengers were sitting in the same and as there were winter days and late evening, he was not in a position to see that how many passengers were sitting in the chhota hathi. The conductor-Nathekhan Chavda has also stated that he has not seen actual happening of the accident and he was giving tickets to the passengers at that time of accident and therefore he was not aware of the factual aspect of the Page 11 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined occurrence of the accident. He further submitted that though one of the ST employee-Vinubhai Shankarbhai Chaudhary has deposed at Exh.192, whereby as per his submission, he has visited the place of accident after about one year of the accident and has taken some photographs which are produced at Exh.193 to 194 but he is not aware about the actual occurrence of the accident except taking photographs after some time of the accident. He has further submitted that even from the affidavit of the driver of the Tata Ace (chhota hathi) vehicle-Habibmiya Sipai at Exh.303 whereby it is stated that due to the serious injury received by him, he could not give the complaint about the accident. At the time of accident on 30.1.2013 he was serving as driver of the said vehicle Tata ace and when he was coming from Sami to Harij at that point of time, his vehicle dashed with the heavy vehicle and before drawing of panchanama, his vehicle was shifted with a view to see the smooth flow of the traffic on the said road. That the said road is found straight for about 1 ½ km and at the placed of incident, there is no light and lights of ST were also not working. He has also stated in his affidavit that 35 to 36 persons were sitting in his vehicle and therefore the said vehicle could not go in excessive speed even considering this aspect. He further submitted that merely filing of complaint against the driver of TATA ace is not sufficient and merely filing of the Page 12 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined chargesheet pursuant to the said FIR is also not sufficient in the motor vehicle cases to determine the aspect of negligence. He submitted that even on this aspect, the investigating officer-Gulabsinh Vaghela was examined at Exh.310 and he has submitted that he has carried out necessary exercise to record the statement of the bus driver, conductor and other passengers travelling in the bus and thereafter he has also examined the bus as well as TATA ace vehicle through the RTO and thereafter he has obtained the injury certificate as well as death certificate of the persons who have received injuries or has died due to the accident. He has further submitted that he has drawn panchanama of place of accident on next date and not on the very same day. He has submitted in his deposition that photographs produced at Exh.194 are not actually showing correct position at the time immediately after the accident has occurred, however, some of the photographs are showing such position, most of the photographs as not showing the correct position. He further submitted that the panchanama at Exh.89 also does not establish any major part of negligence of chhota hathi. Therefore, it seems that both the vehicles have contributed to the accident and therefore he has submitted that the learned Tribunal has rightly considered the negligence from the material available on the record. Considering the fact that ST bus is a bigger vehicle, 70% is rightly attributed and 30% is Page 13 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined rightly attributed to the chhota hathi, otherwise, for the claimants, it is a case of composite negligence and therefore the claimants can recover any amount from any of the tort feasors and therefore he has submitted that the appeals are meritless and considering the totality of the facts and circumstances of the case, negligence can be attributed to the vehicle chhota hathi but ST bus cannot claim that there is 100% negligence of the chhota hathi. Therefore, he prays to dismiss the appeals on the ground of negligence. 7.1. He has further submitted that he has also filed cross- objections by praying some enhancement under the various heads. He submitted that he has supplied separate calculation sheet for the same by considering the settled position of law and considering the judgment of Sarla Verma (supra) and other judgments on the issue about granting compensation to the claimants. He prays to dismiss these appeals and at the best dispose of the same by modifying the apportionment of negligence to some more extent to the chhota hathi like 50% to chhota hathi and 50% to the ST bus. Accordingly, the appeals can be decided by dismissing or by modifying on the aspect of negligence. He has further submitted that his cross objections are required to be allowed by enhancing the amount which is awarded by the learned Tribunal which is on the lower side, considering the various judgments of the Page 14 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Hon'ble Apex Court and therefore prayed to allow the cross- objections and by dismissing the appeals of the ST bus on the aspect of negligence.
8. I have considered relevant record of the case as well as the rival submissions made at the bar and also considered the various aspects arising for consideration of these appeals and cross-objections filed by respective parties. 8.1 Firstly, the issue of contributory negligence is to be considered. The learned Tribunal has framed the issue no.1 in the claim petitions for deciding negligence of the parties. The Tribunal in its judgment at paragraphs 47 to 55 has discussed all the minute aspects in detail. I have also perused the same. Prima facie, it transpires that the reasoning given by the learned Tribunal are correct to some extent but considering the deposition of the driver of the ST bus Exh.188 and also affidavit filed by the driver of the original opponent no.-3-Sipai Exh.303 and also considering the panchanama and other aspects, I am of the view that the accident has occurred because of the negligence of both the sides. However, considering the principle of res ipsa loquitor and also considering the facts that the photographs which are taken by the employee of the ST corporation also indicates that the situation of the vehicle which requires to be Page 15 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined considered, that the FIR and chargesheet is filed against the driver of the Chhota Hathi vehicle, that at the time of filing the original complaint, the complainant has stated that he was sitting in the bus as passenger and he has seen the accident before the police stating that the chhota hathi has come suddenly and therefore the accident has occurred. However, the said person has not supported the version which is given before the police during the deposition of the Tribunal and therefore that version without considering deposition and considering the FIR given by the said Farooq also, I am of the view that it is a case of contributory negligence between two vehicles, however, is not a case for contributory negligence of either of the claimants and for the claimants, it is a case of composite negligence. Considering the facts of the present case, it transpires that due to some problem in said Chhota hathi vehicle, it all of a sudden has come towards ST bus somewhere on the wrong side and thereafter both the vehicles have collided and there is head on collision between both the vehicles and merely because ST bus is bigger vehicle does not mean that in every case the ST bus should be considered sole negligent and can also be fastened with liability to pay the entire amount on the basis of more negligence.
8.2 In the present case, both the vehicles were in excessive Page 16 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined speed and are found rash and negligent and it clearly transpires that there is more negligence which has to be attributed to the chhota hathi vehicle than the driver of the ST bus, considering the FIR, panchanama, deposition of various witnesses, photographs, and therefore, there is a point in the argument of learned advocate Mr.Munshaw that in every case, the ST bus cannot be saddled with the more liability only because that is a big vehicle and it has to be more careful and considering the material available on record, it is found that Tata Ace is more negligent, then ST bus and considering the brake marks found of both vehicles, which are driven in excessive speed, I am of the view that 60% negligence should be attributed to the Tata Ace chhota hathi and 40% should be attributed to the ST bus. 8.3 It will not be out of context to mention here that any vehicle which has to be plied on the road has to be maintained properly. Had the chhota hathi vehicle been maintained properly, the chances of bursting the tyre in the middle of a journey would have become minimum and the accident could have been avoided. Therefore also, the negligence on the part of the chhota hathi vehicle should be apportioned more than the ST bus.
8.4 For academic purpose, the relevant aspects which are Page 17 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined required to be considered for contributory negligence and composite negligence, the following article would be of help:
Understanding Contributory Negligence Contributory negligence occurs when the plaintiff, through their own lack of care, contributes to the damage resulting from the defendant's negligence or wrongful conduct. It serves as a defence wherein the defendant must demonstrate that the plaintiff's failure to exercise reasonable care for their safety played a role in the harm suffered.
For instance, if A, while travelling on the wrong side of the road, is struck by a vehicle driven recklessly by B coming from the opposite direction, A may be met with the defence of contributory negligence.
In Rural Transport Service v. Bezlum Bibi, the conductor of an overcrowded bus encouraged passengers to travel on the roof. Despite the driver's negligence in disregarding the passengers on the roof, there was contributory negligence on the part of those passengers, including the deceased, who willingly assumed the risk of travelling in such a precarious manner.
Similarly, in Davies v. Swan Motor Co. Ltd., an employee riding on the steps of a dust lorry in violation of regulations was injured in a collision with an omnibus. While negligence was attributed to the omnibus driver, there was also contributory negligence on the part of the deceased employee.
In Yoginder Paul Chowdhury v. Durgadas, the Delhi High Court ruled that a pedestrian who abruptly attempts to cross a road and is subsequently struck by a moving vehicle is guilty of contributory negligence. A similar decision was reached in Nance v. British Columbia Electric Rly. Co., where a pedestrian crossing a slippery road was deemed contributorily negligent.
Furthermore, in Harris v. Toronto Transit Commission, the Supreme Court of Canada held that a boy sitting in a bus who extends his arm outside despite warnings and is injured bears contributory negligence.Page 18 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Determining Contributory Negligence To establish contributory negligence, the plaintiff's actions must deviate from what a prudent individual would do in a similar situation. If the plaintiff exercises the same level of care as a reasonable person would, then contributory negligence is not applicable.
In Sushma Mitra v. Madhya Pradesh State Road Transport Corporation, the plaintiff was injured while travelling in a bus with her elbow resting on a window sill. Despite the defendant arguing that this constituted contributory negligence, the court disagreed. It reasoned that while travelling on a highway, it was reasonable for a passenger to rest their elbow on the window sill, and thus the plaintiff was entitled to compensation.
Similarly, in Mrs. Sydney Victor v. Janab S. Kadar Sheriff, the court rejected the argument of contributory negligence when a passenger's thumb was severed while gripping a window bar. The court determined that such an action was not negligent, especially on a broad highway.
In Klaus Mittelbachert v. East India Hotels Ltd., the plaintiff suffered paralysis and subsequent death after diving into a hotel swimming pool with insufficient water. The court found the hotel liable for maintaining hazardous premises and ruled out contributory negligence on the plaintiff's part.
Contributory Negligence and Its Defence Contributory negligence historically served as a robust defence at Common Law, wherein the plaintiff's own negligence acted as a bar to their action against a negligent defendant. This negligence pertained to the plaintiff's failure to exercise due care for their own safety rather than a breach of duty towards the defendant.
In Butterfield v. Forrester, for instance, the plaintiff collided with a pole wrongfully obstructing a highway. Despite the defendant's obstruction, the court ruled against the plaintiff, emphasising that if the plaintiff had been reasonably vigilant, they could have avoided the accident.Page 19 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined This decision exemplifies the principle that a party's negligence, no matter how slight, can affect the outcome of their claim.
However, this strict application of contributory negligence often resulted in significant hardships for plaintiffs, who risked losing their actions due to minor negligence compared to the defendant's primary fault. Recognizing this imbalance, courts introduced the concept of the "Last Opportunity" or "Last Chance" rule to mitigate the severity of contributory negligence.
Under this rule, if the plaintiff had a last opportunity to avoid the harm caused by the defendant's negligence but failed to do so due to the defendant's own negligence, the defendant could be held solely liable. This shift aimed to ensure a fairer distribution of liability, particularly in cases where the plaintiff's negligence was comparatively minor.
The evolution of contributory negligence and the introduction of the Last Opportunity rule reflect the ongoing efforts of the legal system to balance accountability and fairness in negligence cases.
Last Opportunity Rule The Last Opportunity Rule delineates that in cases of negligence where both parties are at fault, the individual who had the final chance to prevent the accident through ordinary care should bear liability for the resulting loss.
Essentially, if the defendant's negligence leads to an accident and the plaintiff, with a subsequent opportunity to avoid harm, fails to exercise reasonable care, the defendant cannot be held accountable. Conversely, if the defendant had the last chance to avert the accident, they will be responsible for the entirety of the plaintiff's loss.
Illustrating this principle is the case of Davies v. Mann, where despite the plaintiff's negligence in tethering his donkey on a narrow highway, the defendant's reckless driving resulted in the donkey's death. Here, the plaintiff was entitled to recover damages as the defendant had the final opportunity to prevent the accident.Page 20 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Similarly, in Radley v. L. & N. W.R. Ry., negligence on the part of the plaintiffs in overloading a truck did not absolve the defendants, who could have avoided damaging the plaintiff's bridge through reasonable care.
The rule's application expanded in British Columbia Electric Co. v. Loach to include cases of "Constructive Last Opportunity." In this scenario, if the party with the last chance to prevent the accident had not been negligent, they are considered responsible. For instance, if defective brakes on a tram prevent it from stopping in a collision, despite the negligence of the wagon driver in crossing the tramline, the tramway company is liable for failing to avert the accident.
However, this rule also presented shortcomings, particularly in maritime collisions, where one party's earlier negligence absolved them of responsibility entirely. To address this, the Maritime Conventions Act, 1911, and subsequently the Law Reform (Contributory Negligence) Act, 1945, established a system of apportioning damages based on the degree of fault exhibited by each party involved in the negligence.
Doctrine of Apportionment In India, the doctrine of apportionment of damages in cases of contributory negligence aligns with principles established in the Law Reform Act of England, although there's no corresponding central legislation. The Kerala Torts (Miscellaneous Provisions) Act, 1976, is one of the few enactments that address this aspect, similar to the English law.
Various High Courts in India have applied the doctrine, reducing compensation based on the degree of fault attributed to the plaintiff. For instance, in Rural Transport Service v. Bezlum Bibi, negligence on the part of both the conductor and driver of an overloaded bus, as well as the deceased passenger who chose to travel on the roof, resulted in the court reducing compensation by 50%.
Similarly, in cases like Subhakar v. Mysore State Road Transport Corporation and Vidya Devi v.M.P. Road Transport Corpn., the courts Page 21 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined have reduced compensation by 50% when both parties were found to be negligent.
Other instances include Maya Mukherjee v. The Orissa Cooperative Insurance Society Ltd., where the court apportioned damages based on a 60%-40% ratio of responsibility between a motorcyclist and a car driver, and Rehana v. Ahmedabad Municipal Transport Service, where the compensation payable to a cyclist was reduced by 25% due to contributory negligence.
The principle has also been upheld by the Punjab and Haryana High Court in Satbir Singh v. Balwant Singh, where compensation was reduced by 2/3rd for a motorcyclist found to be guilty of contributory negligence.
However, in cases where negligence is solely attributed to one party, such as Oriental F. & G. Ins. Co. v. Manjit Kaur, where the scooterist's negligence led to a fatal accident, the claim for compensation was dismissed entirely.
Doctrine of Alternative Danger In certain circumstances, the plaintiff may find themselves in a perilous situation created by the defendant's negligence. Despite the expectation for the plaintiff to exercise caution, there are instances where taking a calculated risk becomes necessary to avoid the danger posed by the defendant's actions.
This legal principle, known as the Doctrine of Alternative Danger, allows the plaintiff to confront an alternative risk to safeguard themselves, their property, or even a third party from the danger created by the defendant.
When faced with a dangerous situation caused by the defendant's negligence, the plaintiff may opt to take evasive action, even if it involves some risk. If the plaintiff's chosen course of action results in harm to themselves, their claim against the defendant remains valid, provided their decision was reasonable under the circumstances. However, it's essential that the plaintiff's judgement is not rash or reckless.Page 22 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined An illustrative case that exemplifies this principle is Jones v. Boyce. In this case, the plaintiff, a passenger in the defendant's coach, found themselves alarmed by the defendant's negligent driving. In an effort to protect themselves from the imminent danger, the plaintiff made the decision to jump off the coach, resulting in a broken leg. Despite the harm suffered by the plaintiff, their action against the defendant was upheld, as it was deemed reasonable given the circumstances.
Similarly, in Shyam Sunder v. State of Rajasthan, the defendants' negligence led to a truck catching fire shortly after setting off on a journey. In an attempt to escape the fire, one of the occupants jumped out of the truck but tragically died after colliding with a stone. The defendants were held liable for the consequences of their negligence.
The principle was further affirmed in Sayers v. Harlow Urban District Council, where the plaintiff sustained injuries while attempting to escape from a defective public lavatory. Despite the plaintiff's actions leading to harm, the defendants were held liable due to their breach of duty in maintaining the lavatory.
In situations such as a train overshooting a platform, passengers are justified in taking the risk of disembarking without a platform to avoid being carried further. If injury occurs during this action, the railway company would be held liable for their negligence.
Composite Negligence Composite negligence occurs when the negligence of two or more individuals leads to the same damage. These individuals, known as composite tortfeasors, collectively bear responsibility for the resulting harm. In England, composite tortfeasors were traditionally classified into joint tortfeasors and independent tortfeasors, each governed by different liability rules.
However, legislative acts such as the Law Reform (Married Women and Tortfeasors) Act, 1935, and the Civil Liability (Contribution) Act, 1978, have harmonised their liabilities to some extent.Page 23 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined In India, courts have not strictly adhered to English law and have instead adopted rules aligned with principles of justice, equity, and good conscience suitable to Indian conditions. Unlike in England, where the distinction between joint and independent tortfeasors is significant, Indian courts have used the term "composite negligence"
to encompass cases involving both types of tortfeasors.
Occasionally, courts have overlooked the distinct connotations of joint and independent tortfeasors, using the term "composite or joint tortfeasors" to refer to situations involving independent tortfeasors.
Nature of Liability in Case of Composite Negligence In cases of composite negligence, the liability of the tortfeasors is joint and several. This means that each tortfeasor is collectively responsible for the entire damage caused, and the plaintiff can enforce the entire claim against any one of the defendants. No tortfeasor can argue for apportionment of liability based on their individual level of fault.
However, a tortfeasor who has paid more than their share of the liability can seek contribution from the other tortfeasors.
Despite a previous Single Bench decision suggesting the possibility of apportionment of liability among tortfeasors, subsequent cases have largely dissented from this view. Courts in various Indian states including Madhya Pradesh, Madras, Mysore, Punjab & Haryana, Orissa, Gujarat, Rajasthan, Guwahati, and Karnataka have favoured the principle of joint and several liability without apportionment among tortfeasors. This aligns with the concept of joint and several liability.
For example, in a case where two buses collided resulting in injuries to passengers, the Karnataka High Court ruled that both drivers were jointly and severally liable for the compensation. Similarly, in a case involving an accident between a state transport bus and a car, resulting in death and injuries, the Guwahati High Court rejected the apportionment of damages and held the state responsible for the entire claim. However, it clarified that this ruling did not prevent the state from seeking contribution from the owner of the car.Page 24 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Contributory Negligence and Composite Negligence Distinguished
1. Nature of Negligence:
● Contributory Negligence: In contributory negligence, the plaintiff contributes to their own harm by failing to exercise reasonable care for their own safety, in addition to the negligence of the defendant. The loss suffered by the plaintiff is the combined result of both the defendant's negligence and the plaintiff's contributory negligence. Contributory negligence is a defence, and damages are apportioned based on the extent of fault.
● Composite Negligence: Composite negligence occurs when a person is injured as a result of the combined negligence of two or more other persons, without any negligence on the part of the plaintiff. In this case, there is negligence on the part of multiple defendants towards the plaintiff, and the plaintiff themselves is not at fault for the harm suffered.
2. Liability:
● Contributory Negligence: In cases of contributory negligence, the liability is apportioned between the plaintiff and the defendant based on their respective levels of fault. If both parties are found to be equally at fault, the defendant's liability is reduced accordingly.
● Composite Negligence: The liability of the persons guilty of composite negligence is joint and several. There is no apportionment of damages among the defendants. Instead, there is a single decree for the whole amount against all defendants, making them jointly and severally liable. The court does not consider how much each defendant should pay individually."
8.5 In addition to that, some of the judgments are also Page 25 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined required to be considered for considering the contributory negligence. In the case of Vilasbhai Thore v. Shivabhai Tejabhai Harijan reported in 2014(3) GLR 2025, the coordinate Bench of this court has held in paragraphs 4 to 6 as under:
4. The issue of negligence decided by the Tribunal, reads as under:
"So far as the question of negligence is concerned, Pankajbhai Ramanlal Shah, petitioner of MACP No. 1432/96 is examined at Exh. 37. Deepakkumar Keshavlal Bhavsar, petitioner of MACP No. 1431/96 is examined at Exh. 55 and Vilasbhai Thore, petitioner of MACP No. 1414/96 is examined at Exh.72. Reiterating the contents they have stated in their deposition, inter alia, that on 26.10.1996 at about 5.50 p.m. They were travelling in a Maruti Car bearing registration No. GJ-1-PP-2516 while going from Ahmedabvad to Nadiad. It was being driven by Opponent No. 4 of MACP No. 1431/96 and 1432/96 Vilasbhai Thore on the left hand side of the road at a moderate speed. Near Kheda camp on the highway, one truck bearing registration No. GJ-3T-3279 came from the opposite direction to a great speed and collided with the jeep. The petitioners sustained injuries. All the petitioners Page 26 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined have been cross-examined at length on behalf of the insurance company. It transpires from their cross-
examination that the collision between the two vehicles took place when Maruti Car was climbing a slope of river Shedi. Over and above the oral evidence, the petitioners have produced a copy of complaint at Exh.39, a copy of the panchnama at Exh. 39. From the oral as well as the documentary evidence, it is abundantly clear that the collision between the two vehicles took place when the car was climbing the slope of river Shedi. It is a fact that when there is a slope on a bridge or a culvert and if two vehicles are coming from the opposite directions, one cannot see the vehicle coming unless the coming vehicles comes at the top of the slope or the vehicle wherein one is travelling reaches to the top because, on both the sides of the bridge there is a slope. It is therefore, advisable that the vehicles coming from both the directions should drive their respective vehicles in the extreme left hand side and should reduce the speed unless the rad ahead is totally visible. This accident appears to have taken place because the drivers of both the vehicles did not take their respective vehicles on the extreme left hand side nor reduced the speed. The driver of the truck could not seen Maruti Car coming from the opposite direction nor the Page 27 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined driver of the Maruti Car could see the driver of the truck on the other side because of the slope. Suddenly when they saw the other vehicle, it was too late and the drivers could not control their respective vehicles because of their speed and that is how the collision took place. In my opinion, therefore.it is a case of contributory negligence and it appears to be a head-on-collision and, therefore, the drivers of both the vehicles are equally responsible for the accident. I, therefore, attribute 50% negligence to the drivers of both the vehicles. Exh. 40 is a copy of the policy of Oriental Insurance Company Ltd. It shows that at the relevant time, the opponent No. 2 was the owner and opponent No. 3 was the insurer of the offending vehicle.
Exh. 41 is a certificate of insurance issued by opponent No. 6 United Indian Insurance Company Ltd. which shows that at the relevant time, the opponent No. 5 was the owner and opponent No. 6 was the insurer of the Maruti Car in question. Thus, all the opponents are liable to pay compensation to the petitioners. In MACP No. 1414/96 the driver of the Maruti Car himself is the petitioner and, therefore, the owner and insurer of the said vehicle have not been joined as opponents. I, therefore, decide issue No. 1 accordingly."Page 28 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined
5. This is one of the bone of the contention that the Tribunal has, not considered the fact that there were two vehicles of unequivalent magnitude involved in the accident.
6. The concept of contributory negligence requires to be considered in this case. The vehicles were not of equal magnitude. It was an involvement of truck of one side which was coming down of the slope and there were marks of brakes of car, and therefore it can be said that the driver of the car had taken pre-caution, whereas the driver of the truck lost the control and collusion took place. The contributory negligence of small vehicle is less compare to a big vehicle. The driver of the big vehicle has to take more caution. In light of the facts and circumstances as emerges before this Court, the driver of the truck was more negligent than the driver of the car, and therefore, the negligence of driver of the car can be attributed to 30% instead of 50%.
8.6 It is also relevant to refer to the judgment of the Division Bench of this Court in the case of Amarsi Jugabhai v. Vijayaben Hemantlal Dhulia, reported in 1996(1) GLH 1007, paragraphs nos.23 to 27, 28, 29 and 31 as under: Page 29 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined "23. It is well settled that where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required for each tortfeasor is liable for damage which he caused.
Persons are not joint tortfeasors merely because their independent wrongful acts have resulted in one damnum. Where damage is caused as the result of torts committed by two or more tortfeasors, the tortfeasors may be (i) joint tortfeasors, (ii) several tortfeasors causing the same damage or (iii) several tortfeasors causing different damage. Who, then, are joint tortfeasors? One way of answering the question is to see whether the cause of action against each tortfeasor is the same. If the same evidence would support an action against each, they are joint tortfeasors. Wrong doers are deemed to be joint tortfeasors where cause of action against each of them is same, viz. that the same evidence would support action against them individually. They will be jointly liable for a tort which they both commit or for the commission of which they are both responsible and not for a tort where each is responsible for a different injuria and the two injuriae happen to produce the same damnum. All persons who and or counsel, direct or join in committal of a wrongful act, are joint tortfeasors. Normally, joint liability arises under three circumstances: (i) Page 30 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Agency when one person employs another to do an act which turns out to be a tort, (ii) vicarious liability, i.e. the liability arising from relationships such as master and servant, principal and agent, guardian; and ward, etc. and
(iii) joint action where two or more persons combine together to commit an act which amounts to a tort. Persons are said to be joint tortfeasors when their separate shares in the commission of act are done in furtherance of a common design. Joint tortfeasors are jointly and severally liable for the whole damage resulting from the tort. They may be sued jointly or severally. If sued jointly, damage may be levied from all or either. Where a person is injured without any negligence of two drivers of the colliding vehicles, it is not a case of contributory negligence but a case of what has been described by Pollock as "injury by composite negligence". In a suit for "composite negligence" meaning thereby negligence of two or more persons other than victim of the negligence, the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, he is entitled to sue all or any of the negligent a persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though Page 31 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined in any case he cannot recover in the whole more than his whole damage. He has right to recover the full amount of damage from any of the joint tortfeasors. Those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tortfeasors is joint and several.
24. Where a person is injured in a motor accident which occurs not on account of his negligence, but because the drivers of collided vehicles were negligent, the claimants are entitled to damage jointly and severally from the negligent respondents. Every wrong doer is liable for the whole damage and it does not matter whether they acted between themselves as equals. A decree passed against two or more tortfeasors can be executed against any one of the defendants and such defendant can be compelled to pay the entire amount of damages decreed. It is further clear that the defendant who is compelled to pay the entire amount of damages decreed has a right to contribution from the other wrong doer. The liability in the case of composite negligence, unless must normally should not be apportioned because the claimant is able to recover the whole amount of compensation from owner or driver of either vehicles. In case of composite negligence, liability for compensation in Page 32 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined normal circumstances, should not be apportioned, as both wrong doers are jointly and severally liable for the whole loss. Rule of apportionment of liability applies in a case of contributory negligence, i.e. where the injured himself is also guilty of negligence
25. We would now refer to the decisions of this Court on the point in question. In the case of Hiraben Bhaga v. G.S.R.T. Corporation, 1982 (1) G.L.R. 190, four Motor Accident Claim Petitions, which arose out of an accident on account of a collision between a jeep and an S.T. Bus, were filed. The jeep was driven by one Thakkar Dalpatram Sundarji. The heirs and legal representatives of deceased Manji Bhaga had instituted Claim Petition No. 6 of 1974 and had claimed total compensation of Rs. 1,15,000/-. Issue No. 5 framed by the Tribunal for determination was whether Dalpatram Sundarji who was driving the jeep, was a necessary party or not and on appreciation of the evidence, the said issue was answered by the Tribunal in the affirmative. The Tribunal awarded the claim in all Rs. 11,500/- with six per cent interest. Having been aggrieved by the said award, the claimant filed an appeal before this Court. On behalf of the S.T. Corporation, it was submitted before this Court that in view of the finding on issue No. Page 33 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined 5 to the effect that Dalpatji Sundaiji, who was driving the jeep, is a necessary party, application for compensation must fail, as he had not been joined to the proceedings despite the fact that an application was given to the Tribunal for that purpose. While negativing the above referred submission, the Division Bench has held as under:
"It is true that the Tribunal has given an affirmative finding on the issue concerning that question, but, with respect, we are of the view that is not a correct finding.
Since Dalpatji Sundarji was concerned as a driver in the occurrence of the incident, the claimants indeed had the option to join him as one of the opponents, but that choice given to the claimants does not make Dalpatji Sundarji a necessary party, Necessary party means that no decree can be passed without his presence in the proceedings. In other words, a party is a necessary party when his presence in the proceedings is necessary for the very constitution of the suit, that is to say persons in whose absence no effective decree at all can be passed. Such is not the case with regard to the absence in the proceedings of Dalpatram Sundarji. The claimants can sue the joint tortfeasors either jointly or severally and can have a complete redress for the injuries suffered by them from either of them. This is now a settled legal position, vide 13 G.L.R. 920 (Life Page 34 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Insurance Corporation of India v. Heirs & Legal Representatives of deed. Naranbhai Munjabhai Vadhia). Mr. Shah submission, therefore, does not have any force and on our part we need not elaborate the legal position further in order to reject his submission."
26. In view of the above principle laid down by this Court, it is clear that in order to have a complete redress for the injuries suffered by the claimants, it is not necessary for them to sue all the joint tortfeasors and the claimants can sue the joint tortfeasors either jointly or severally.
27. In the case of Gujarat State Road Trans. Corpn. v. Gurunath Shahu, 1989 ACJ 314, the heirs and legal representatives of the deceased had preferred claim petition. In the claim petition, owner of the vehicle and the insurance company with which the said vehicle had been insured, were not joined as parties. The Corporation contended that he vehicle owner and the insurance company be also joined as parties. The Tribunal rejected the said contention taking the view that it was for the claimants to select the tortfeasor for suing and non-joinder of mother tortfeasor would not entitle the tortfeasor joined in the proceedings to pray that the amount of Page 35 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined compensation to be awarded to reduce to the extent of the liability of the tortfeasor who is not joined the petition. In an appeal before this Court, it has been held as under:
"4. Prima-facie, on technical considerations, the Tribunal appears to be right and its decision does not seem to be incorrect. However, the practical aspect and certain intractable difficulties which may arise on account of such a course being adopted by the Tribunal cannot be lost sight of. Some such considerations which ought have weigned and which ought to have been taken into consideration by the Tribunal while deciding questions regarding-joinder or non-joinder of joint tortfeasors ire as follows:
(i) It is settled legal position that even if he liability of a joint tortfeasor is to the extent of 1 per cent, the entire amount, i.e. hundred per cent of the amount of compensation awarded can be recovered from the tortfeasor whose liability is adjudged to the extent of 1 per cent only. In given case the claimants may enter into collusion with the tortfeasor whose liability may be to a greater extent and that joint tortfeasor may not be joined at all before he Tribunal. This possibility cannot be ruled out.
(ii) Ultimately, in a given case entire amount of compensation may be paid by insurance company or public Page 36 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined body. But while determining the question as to the extent of liability, the question as regards who was negligent in driving the vehicle has got to be decided by the Tribunal.
While deciding some cases it may not be of much significance for the Tribunal (or for that master for this High Court also) to say as to which driver was responsible, and to what extent, for causing the accident in question. However, for determining the rate of premium to be charged for each type of vehicle and for determining the reasonable rate of passenger fare by public corporations like the appellant herein, decisions on such questions have far- reaching significance. Therefore, though it may not be necessary for determining the issues involved in the case, it is certainly a matter of consequence for the purposes of public finance and particularly for determining the policy questions of finances pertaining to public institutions like transport corporations and insurance companies. Therefore, it is very much necessary that whenever such question is raised before Tribunal, as far as possible, the Tribunal should not avoid the same and should see that all the tortfeasors are brought before the Tribunal and all the issues pertaining to contributory negligence are decided in the same claim petition.
(iii) Be it noted that bifurcation of the liability without the Page 37 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined presence of another joint tortfeasor becomes an academic formality only. The other joint tortfeasor in whose absence the question is decided, may very well say that the decision is not binding on him because he was not party to the said proceedings. On the other hand, if other joint tortfeasor is brought on the record and is given an opportunity to plead his case, he may be in a position to show that he was not at all negligent, or that in his presence certain evidence against him can also be produced by other joint tortfeasor and his liability may be adjudged to a larger extent.
(iv) As far as public corporations like the appellant are concerned, the decision fixing the extent of negligence and/or the liability may even have impact on the departmental proceedings against the driver concerned.
(v) In a present complex society in which the judicial institutions are working, the courts and Tribunals cannot, and as far as possible should not, function so as to leave problems for the future decision. Avoidance of future litigation and prevention of multiplicity of litigation should be an endeavour of all the judicial Tribunals. We cannot function in isolation being totally oblivious and indifferent to the needs for co-ordination between different public bodies and the need for speedy resolution of socioeconomic Page 38 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined issues, reference to which has been made hereinabove.
(vi) In this connection reference may be made to the provisions of Order 1, Rule 10(2) of the Civil Procedure Code. As per this provision, a civil court, which the provisions of Civil Procedure Code are applicable, is empowered to direct that a particular party be added as plaintiff or defendant whose presence in the opinion of the Court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In proceedings before the Motor Accidents Claims Tribunal this principle can certainly be resorted to, or at any rate the same should be kept in mind by the Tribunal while deciding such questions.
5. In view of the aforesaid position, without deciding this question finally either way, on an assumption that Tribunal's decision is technically correct, we would like to further observe as follows: Simply because technically it may be permissible, we hope the Tribunals will not adopt this easy course which may quickly dispose of matters. Such disposals will certainly sow the seeds for future litigation and it is bound to fructify the litigation. Therefore, whenever, a plea for joining another joint tortfeasor is raised and prayed for, it would be better for Page 39 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined the Tribunal to insist that all the joint tortfeasors be brought on record. At any rate when an application for joining party is submitted by a tortfeasor on record, we hope such application will be allowed almost as a matter of rule and practice and another joint tortfeasor will be joined as party defendant/opponent."
28. We entirely agree with aforesaid observations. Still, in the above referred case also, it is clearly held that it is settled legal position that even if the liability of a joint tortfeasor is to the extent of per cent, the entire amount, i.e. hundred per cent of the amount of compensation awarded can be recovered from the tortfeasor whose liability is adjudged to the extent of 1 per cent only and the omission to sue one of the joint tortfeasors will not disentitle the claimants from claiming full relief against one who is sued. However, we again emphasise that for the reasons stated in the above-referred to decision, when an application for joining party is submitted by the joint tortfeasors on record, such application should be allowed almost as a matter of rule and practice and another joint tortfeasor should be joined as party defendant/opponent. It may be noted that in the above-referred to decision, the Division a Bench has not considered the effect of non- Page 40 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined joinder of joint tortfeasors in an action for claim and the judgment has been rendered on the assumption that the Tribunal was right in rejecting the contention of the Corporation that all the joint tortfeasors should have been impleaded as parties to the action for claim.
29. As laid down in the said case, it would have been better if the deceased driver-cum-owner of the car through his heirs and the Insurance Company with which the car was insured, were impleaded as parties by the claimants in claim case No. 154/82, as not only it would have made easier for the appellants to recover the amount due in proportion to the negligence fixed by the Court, but also would have avoided future litigation. However, non- impleadment of the other joint tortfeasor or his heirs or the Insurance Company with which the car was insured, has no effect on the claim of the claimants and the appellants are, in our view, jointly and severally liable to satisfy the entire award made in favour of the claimants.
31. With great respect to the learned Judges, who have decided the aforesaid case, we are unable to agree with the view taken by them. As held by the Division Bench of this Court in the case of Gujarat State Road Transport Page 41 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Corporation (supra) it would always be better to sue all joint tortfeasors in one proceeding. It would not only enable the Tribunal to apportion negligence between the joint tortfeasors, but would also facilitate the task of claimants in recovering the amount of compensation awarded and in appropriate cases directions can always be issued by the Tribunal to joint tortfeasors to share the liability of paying compensation in proportion to negligence established on the record of the case. However, for any reasons if one of the joint tortfeasors is not sued by the claimants or the request made by the joint tortfeasor who is sued, to implead other person as one of the joint tortfeasors as a party to the proceedings, is turned down, that would not mean that the joint tortfeasor who is held liable to pay the entire amount cannot recover the proportionate amount from the joint tortfeasor who is not sued. In such an eventuality, on the strength of the finding in the judgment or award of the Tribunal to the effect that tortfeasor who is not before the Tribunal is also negligent, the tortfeasor who is made liable to pay the amount of compensation can always initiate appropriate proceedings for recovering proportionate amount from the joint tortfeasor who is not sued. In such proceedings the finding regarding composite negligence of joint tortfeasor who is sought to be made Page 42 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined liable, nor the finding recorded by the Tribunal earlier would operate as res judicata because it has been accepted as a general rule since long that so far as regards the truth of the matter decided, a judgment is not an admissible evidence against one who is a stranger to the suit. The negligence and proportion of negligence will have to be proved by the tortfeasor who wants to saddle another person as joint tortfeasor for the claimants and forum in which the proceeding have been initiated will have to decide the aspect of negligence and proportion of liability of another person as joint tortfeasor on the evidence led before it. It is true that in absence of a party, it is not bound by the judgment or award finding him compositely negligent as one of the joint tortfeasors. However, on the finding in the judgment the award to the effect that the party who is not before the court, is also negligent, the tortfeasor who is before the Court and who is made liable to pay the entire amount of compensation would be entitled to institute appropriate proceedings to realise from the absentee joint tortfeasor, the proportionate amount to the extent of contributory negligence. In case of initiation of such proceedings between the joint tortfeasors, the forum in which such proceedings are inititated will have to ascertain the facts and reach a conclusion on the point of negligence Page 43 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined independent of tentative findings recorded in the earlier proceeding and if it is found that there was composite negligence, then appropriate orders will have to be passed after ascertaining proportion of negligence. The tentative findings regarding proportionate liability of joint tortfeasors fixed by judgment or award in absence of one of the joint tortfeasors, cannot be treated as binding decision or barred by the principle of res judicata. Therefore, in our view, the premise on which the judgment of Punjab and Haryana High Court proceeds is erroneous and it is not correct to say as a matter of principle that in absence of a party, the party which is before the court, cannot ask the other party who is not before the court to contribute toward the amount awarded. A joint tortfeasor in an action for contribution of damages against another joint tortfeasor will have to prove independently that the absentee joint tortfeasor in whose absence finding of composite negligence was recorded in a judgment or award, was in fact negligent and liable to contribute proportionately to the joint tortfeasor for the compensation awarded to the claimants."
8.7 In the judgment in the case of Khenyei versus New Indian Assurance Co. Ltd., reported in (2015) 9 SCC 273, it Page 44 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined is held as under:
"5. In Law of Torts by Winfield and Jolowicz, 17 th Edn., 2006, the author has referred to Performance Cars Ltd. v. Abraham [1962 (1) QB 33], Baker v. Willoughby 1970 A.C. 467, Rogers on Unification of Tort Law: Multiple Tortfeasors; G.N.E.R. v. Hart [2003] EWHC 2450 (QB), Mortgage Express Ltd. v. Bowerman and Partners 1996 (2) All E.R. 836 etc. and observed thus :
"WHERE two or more people by their independent breaches of duty to the claimant cause him to suffer distinct injuries, no special rules are required, for each tort feasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. If the claimant sues defendant A but not B and C, it is open to A to seek "contribution" from B and C in respect of their relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tort feasor against Page 45 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined the others. It may be greatly to the claimant's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. Even where all participants are solvent, a system which enabled the claimant to sue each one only for a proportionate part of the damage would require him to launch multiple proceedings, some of which might involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the "easiest target". The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by certain professional bodies, who have argued instead for a regime of "proportionate Page 46 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined liability" whereby, as against the claimant, and not merely among defendants as a group, each defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal injury claims, this has occurred in some American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Dept. of Trade and Industry in 1996 led to the conclusion that the present law was preferable to the various forms of proportionate liability."
8.8 In the judgment of the Hon'ble Apex Court in the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and another reported in 2003(8) SCC 731 , wherein it is held in paragraph 6 as under:
"6. A plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance 'negligence' is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or Page 47 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of a care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligate or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of Page 48 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.Page 49 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024
NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P. 361)."
8.9 In the judgment in the case of Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak and others reported in 2002(6) SCC 455, wherein it is held in paragraph 9 as under:
"9.Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting :"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In Page 50 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owned may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." Therefore, in view of the above discussion, I am of the view that the appeals of the ST corporation are required to be allowed partly.
9. On the aspect of quantum of compensation, I am of the view that the contentions raised by the learned advocate Mr.Munshaw on the aspect of quantum are not supported by any documents and thus meritless and are required to be Page 51 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined rejected. On the contrary, considering the material available on record and submissions made at the bar and also considering the decisions in the cases of National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680, Sarla Verma V/s Delhi Transport Corporation reported in (2009)6 SCC 121, Magma General Insurance Company Ltd. V/s Nanu Ram and Others reported in (2018)18 SCC 130, Rajkumar V/s Ajaykumar reported in (2011)1 SCC 343, Govind Yadav V/s National Insurance Com.Ltd. Reported in 2012(1) TAC 1(SC) and United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, considering the factual aspects of the present matter and documentary evidence available on the record in most of the matters except one or two matters, cross-objections filed by the claimants are required to be allowed by enhancing the amount awarded.
10. On the aspect of quantum, the amount which is awarded by the learned Tribunal is on lower side as the income is not considered as per the minimum wages prevalent at the relevant point of time in view of the judgment of the Hon'ble Apex Court in the case of Govind Yadav (supra), wherein it is held that the income should be considered as per the inflation and standard of income at the relevant point of time and amount is required to be Page 52 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined considered under other heads also. Even on the heads of loss of consortium, funeral expenses, loss of estate (in fatal cases) and on the heads of pain, shock and suffering, transportation, special diet etc. (in injured cases), considering the judgment of Pranay Sethi (supra), and Magma General Insurance Company Ltd., (supra) the same is on the lower side, which is required to be enhanced from the amount awarded by the learned Tribunal in respective cases, after calculating the compensation, as below.
11. As the accident occurred on 30.1.2013, the minimum wages prevalent at the time of the accident for semi-skilled workers was Rs.5050/- and therefore the same has to be taken as income, as per the ratio laid down in the judgment of Govind Yadav (supra). Further, in case of minor, considering the judgment in the case of Meena Devi V/s Nunu Chand Mahto @ Nemchand Mahto reported in 2023(1) SCC 204, the lumpsum compensation is to be awarded of Rs.5,00,000/-.
12. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of `just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section Page 53 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined 168 of the Motor Vehicles Act deals with the concept of `just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavour should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants. Even considering the above principle, the amount is required to be enhanced in the cross-objections filed by the claimants. X-OBJECTIONS NO.183 OF 2024: (MACP NO.166 OF 2013):
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.187 OF 2024: (MACP NO.165 OF 2013):
Particulars Amount (Rs.) Page 54 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Loss of future income 5,42,976/- Rs.5050/- per month and adding 40%
prospective income, it comes to Rs.7070/- out of which deducting the amount of 40% disability, it comes to Rs.2828/- and multiplying it with 12 months and applying the multiplier of 16.
Loss of actual income 40,400/-
Pain, shock and suffering 60,000/-
Medical expenses 54,000/-
Special Diet, attendant charges and 25,000/-
transportation
Total 7,22,376/-
Amount awarded by the Tribunal 3,58,400/-
Amount to be enhanced 3,63,976/-
X-OBJECTIONS NO.185 OF 2024: (MACP NO.171 OF 2013):
Particulars Amount (Rs.)
Future prospects NIL
(as the age of the claimant is above 60 years) Loss of dependency 2,82,828/-
Rs.5050/-, deducting 1/3 rd towards personal Page 55 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined expenses = 1683 and multiplying it with 12 months and applying 7 multiplier Loss of estate 18,150/-
Loss of consortium 96,800/-
Two dependents
Funeral expense 18,150/-
Total 4,19,295/-
Amount awarded by the Tribunal 1,98,000/-
Amount to be enhanced 2,21,295/-
X-OBJECTIONS NO.178 OF 2024: (MACP NO.172 OF 2013):
Particulars Amount (Rs.)
Loss of future income 2,74,968/-
Rs.5050/- per month and adding 40%
prospective income, it comes to Rs.7070/- out of which deducting the amount of 18% disability, it comes to Rs.1273/- and multiplying it with 12 months and applying the multiplier of 18.
Loss of actual income 14,080/-
Pain, shock and suffering 40,000/-
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Special Diet, attendant charges and 25,000/-
transportation
Total 3,54,048/-
Amount awarded by the Tribunal 1,47,640/-
Amount to be enhanced 2,06,408/-
X-OBJECTIONS NO.175 OF 2024: (MACP NO.289 OF 2013):
Particulars Amount (Rs.)
Loss of future income 2,45,208/-
Rs.5050/- per month and adding 40%
prospective income, it comes to Rs.7070/- out of which deducting the amount of 17% disability, it comes to Rs.1202/- and multiplying it with 12 months and applying the multiplier of 17.
Loss of actual income 28,280/-
Pain, shock and suffering 40,000/-
Special Diet, attendant charges and 25,000/-
transportation
Total 3,38,488/-
Amount awarded by the Tribunal 1,46,040/-
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Amount to be enhanced 1,92,448/-
X-OBJECTIONS NO.174 OF 2024: (MACP NO.290 OF 2013):
Particulars Amount (Rs.)
Loss of future income 1,90,080/-
Rs.5050/- per month and adding 40%
prospective income, it comes to Rs.7070/- out of which deducting the amount of 14% disability, it comes to Rs.990/- and multiplying it with 12 months and applying the multiplier of 16.
Loss of actual income 20,720/-
Pain, shock and suffering 40,000/-
Special Diet, attendant charges and 25,000/-
transportation
Total 2,75,800/-
Amount awarded by the Tribunal 1,07,200/-
Amount to be enhanced 1,68,000/-
X-OBJECTIONS NO.186 OF 2024: (MACP NO.158 OF 2013):
Particulars Amount (Rs.) Page 58 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Loss of future income 2,16,240/- Rs.5050/- per month and adding 40%
prospective income, it comes to Rs.7070/- out of which deducting the amount of 15% disability, it comes to Rs.1060/- and multiplying it with 12 months and applying the multiplier of 17.
Loss of actual income 10,100/-
Pain, shock and suffering 40,000/-
Medical expenses 6200/-
Special Diet, attendant charges and 25,000/-
transportation
Total 2,97,540/-
Amount awarded by the Tribunal 1,29,000/-
Amount to be enhanced 1,68,540/-
X-OBJECTIONS NO.190 OF 2024: (MACP NO.132 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 9,61,452/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/3 rd towards personal expenses, Page 59 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined multiplying it with 12 and applying multiplier of 17 Loss of estate 18,150/-
Loss of consortium 1,45,200/-
Three dependents
Funeral expense 18,150/-
Total 11,43,020/-
Amount awarded by the Tribunal 6,01,200/-
Amount to be enhanced 5,41,820/-
X-OBJECTIONS NO.176 OF 2024: (MACP NO.134 OF
2013):
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.189 OF 2024: (MACP NO.157 OF
2013):
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.179 OF 2024: (MACP NO.145 OF 2013):
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.192 OF 2024: (MACP NO.147 OF
2013):
Particulars Amount (Rs.)
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Loss of dependency 10,18,008/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 18 Loss of estate 18,150/-
Loss of consortium 96,800/-
two dependents
Funeral expense 18,150/-
Total 11,51,108/-
Amount awarded by the Tribunal 4,83,600/-
Enhanced amount 6,67,508/-
X-OBJECTIONS NO.184 OF 2024: (MACP NO.137 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 10,18,008/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 18 Page 62 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Loss of estate 18,150/-
Loss of consortium 1,45,200/-
three dependents
Funeral expense 18,150/-
Total 11,99,508/-
Amount awarded by the Tribunal 6,74,800/-
Enhanced amount 5,24,708/-
X-OBJECTIONS NO.193 OF 2024: (MACP NO.146 OF 2013):
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.182 OF 2024: (MACP NO.144 OF
2013):
Particulars Amount (Rs.)
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Loss of dependency 9,61,452/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting ½ towards personal expenses, multiplying it with 12 and applying multiplier of 17 Loss of estate 18,150/-
Loss of consortium 48,400/-
one dependent
Funeral expense 18,150/-
Total 10,46,152/-
Amount awarded by the Tribunal 4,58,400/-
Enhanced amount 5,87,752/-
X-OBJECTIONS NO.173 OF 2024: (MACP NO.143 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 3,99,924/-
Rs.5050/- and adding prospective income of at 10% which will be Rs.505/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 9 Page 64 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined Loss of estate 18,150/-
Loss of consortium 96,800/-
two dependents
Funeral expense 18,150/-
Total 5,33,024/-
Amount awarded by the Tribunal 2,67,600/-
Enhanced amount 2,65,424/-
X-OBJECTIONS NO.177 OF 2024: (MACP NO.141 OF 2013):
Particulars Amount (Rs.)
Lumpsum amount 4,50,000/-
Loss of Estate, loss of consortium, funeral 50,000/-
expenses
Total... 5,00,000/-
Less : Amount which is already awarded 1,51000/-
Enhanced amount 3,49,000/-
X-OBJECTIONS NO.188 OF 2024: (MACP NO.139 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 10,81,608/-
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NEUTRAL CITATION
C/FA/327/2023 JUDGMENT DATED: 30/08/2024
undefined
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/4 th towards personal expenses, multiplying it with 12 and applying multiplier of 17 Loss of estate 18,150/-
Loss of consortium 1,93,600/-
four dependents
Funeral expense 18,150/-
Total 13,11,508/-
Amount awarded by the Tribunal 6,72,600/-
Enhanced amount 6,38,908/-
X-OBJECTIONS NO.191 OF 2024: (MACP NO.138 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 10,81,608/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/4 th towards personal expenses, multiplying it with 12 and applying multiplier of 17 Loss of estate 18,150/-
Loss of consortium 1,93,600/- Page 66 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined four dependents Funeral expense 18,150/- Total 13,11,508/- Amount awarded by the Tribunal 6,72,600/- Enhanced amount 6,38,908/-
X-OBJECTIONS NO.181 OF 2024: (MACP NO.133 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 9,61,452/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 17 Loss of estate 18,150/-
Loss of consortium 1,45,200/-
three dependents
Funeral expense 18,150/-
Total 11,42,952/-
Amount awarded by the Tribunal 6,01,200/-
Enhanced amount 5,41,752/-
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X-OBJECTIONS NO.192 OF 2024: (MACP NO.147 OF
2013):
Particulars Amount (Rs.)
Loss of dependency 10,18,008/-
Rs.5050/- and adding prospective income of at 40% which will be Rs.2020/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 18 Loss of estate 18,150/-
Loss of consortium 96,800/-
two dependents
Funeral expense 18,150/-
Total 11,51,108/-
Amount awarded by the Tribunal 4,83,600/-
Enhanced amount 6,67,508/-
X-OBJECTIONS NO.202 OF 2024: (MACP NO.129 OF 2013):
Particulars Amount (Rs.)
Loss of dependency 3,99,924/-
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Rs.5050/- and adding prospective income of at 10% which will be Rs.505/-and deducting 1/3 rd towards personal expenses, multiplying it with 12 and applying multiplier of 9 Loss of estate 18,150/-
Loss of consortium 1,45,200/-
three dependents
Funeral expense 18,150/-
Total 5,81,424/-
Amount awarded by the Tribunal 2,67,600/-
Enhanced amount 3,13,824/-
13. Therefore, I hold that the claimant/s of each claim petition are entitled to get the total amount of compensation as indicated in the above tables.
14. For the reasons recorded above, the following order is passed.
14.1 The present appeals and cross-objections are partly allowed to the aforesaid extent by modifying the impugned judgments and awards passed in respective claim petitions by Page 69 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined the learned Tribunal.
14.2 The impugned judgments and awards are modified to the extent that the claimants are entitled to recover the amount of compensation (including the enhanced amount by way of these appeals) with 9% p.a. interest from the date of claim petitions till its realization and proportionate cost from the opponent nos.1 to 4 jointly and severally. The original opponent no.2 - S.T. Corporation shall first deposit the entire awarded amount, including the enhanced amount, with interest and cost, before the learned Tribunal, within a period of six weeks from today and it is open for the S.T. Corporation to recover 60% of such deposited amount from the driver and owner of Tata Ace ('chhota hathi') i.e. opponent nos.3 and 4, in accordance with law. Rest of the directions given in the impugned judgment remains unaltered. 14.3 On deposit of the said amount, the Tribunal shall disburse the entire awarded amount with cost and interest, if any, to the respective claimants, by account payee cheque/NEFT/RTGS, after proper verification and after following due procedure.
14.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with Page 70 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024 NEUTRAL CITATION C/FA/327/2023 JUDGMENT DATED: 30/08/2024 undefined rules/law.
14.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 71 of 71 Uploaded by U. SRILATHA(HC00185) on Tue Sep 10 2024 Downloaded on : Fri Sep 13 21:56:46 IST 2024