Madhya Pradesh High Court
Gujarat State Road Trans. Corpn. And ... vs Shardabai And Ors. on 25 August, 1995
JUDGMENT R.D. Shukla, J.
1. This judgment shall govern the disposal of M.A. No. 228 of 1987 (G.S.R.T.C. v. Shardabai) and M.A. No. 232 of 1987 (Shardabai v. G.S.R.T.C.) as both the appeals are directed against the judgment and award dated 9.9.1987 of M.A.C.T., Dhar passed in Claim Case No. 14 of 1983 whereby claimants (widow, children and parents of deceased Chandu-bhai) have been awarded a compensation of Rs. 60,000/- in all.
2. The brief history of the case is that Chandubhai was travelling in Fiat car No. GJH 3332 with Dilipbhai as the driver of the car on 22.12.1982. The passenger bus No. GRR 8020 driven by Manohar, N.A. No. 3 and owned by N.A. No. 1 came from the opposite direction, it tried to overtake the truck and in that process collided with the car. All the occupants of Fiat car including Chandubhai sustained injuries. Chandubhai succumbed to injuries after sometime. Claimant No. 1 is the widow, Nos. 2, 3, 4 are son and daughters and No. 5 and 6 are parents of Chandubhai. All of them filed the petition for grant of compensation of Rs. 4,15,000/-. The non-applicants, i.e., G.S.R.T.C., Depot Manager and driver contested and refuted the contentions raised by claimants. It was further pleaded that as the driver, owner and insurer of Fiat car have not been made party, the claim petition is not maintainable and the respondents (N.As.) cannot be held liable for payment of compensation.
3. Learned Tribunal found that drivers of both the vehicles, i.e., driver of Fiat car and passenger bus were equally negligent in driving and granted the award of Rs. 60,000/- in all. It was also held that as the owner and driver of passenger bus were composite tortfeasors, the claimants could file claim petition against any of them and, therefore, the whole amount is recoverable from non-applicants of claim petition.
4. Appeal No. 228 of 1987 has been filed by G.S.R.T.C. (N.As. in claim petition) challenging the award and liability of payment; while Appeal No. 232 of 1987 has been filed by the claimants for enhancement of the amount of compensation.
5. The contention of learned Counsel for G.S.R.T.C. is that firstly the car driver was wholly responsible for the accident as he tried to take out his vehicle through and in between of two vehicles, i.e., truck and motor bus. The second contention of counsel for G.S.R.T.C. is that as owner and insurer of the motor car have not been made party, they are not liable to pay the compensation and further their liability would be to the extent of contribution of negligence only.
As against it, learned Counsel for claimants has submitted that it is a case of composite negligence and, therefore, the claimants are entitled to file petition against either of them. The second contention of counsel for claimants is that the amount of compensation awarded is on the lower side. Learned Tribunal has failed to take into consideration the earning of deceased and dependency of members of the family.
6. The first point that arises for consideration in the case is as to who and to what extent was responsible for the accident. The claimant has examined Dilipbhai, CW 4, the driver of motor car No. GJH 3332. He has stated that he along with deceased Chandubhai, his father Vallabhbhai, mother Ichaben and Sharda-bai w/o Chandubhai were returning back from Bhopal on 8.12.1982, they reached village Peepalkhedi at about 3 p.m., he located a truck coming from opposite direction; he, therefore, took his motor car to the left side and slightly on unmetalled road. Meanwhile he located the motor bus of G.S.R.T.C, driver of which was trying to overtake the truck and it was in a high speed and while overtaking the motor truck, the driver of the bus dashed against the motor car. Thus there was collision; all the occupants of the car were injured, Chandubhai also sustained injuries and died in consequence thereof. This fact has been stated by CW 5 Shardabai as well. The claimants have filed photographs Exhs. C 7 to 10. This also goes to show that the major part of the motor car was on unmetalled part of the road. The driver of G.S.R.T.C., Manohar has appeared as DW 1 and stated that the car driver tried to take out the vehicle from in between the two vehicles, i.e., motor bus and truck. This witness was driving a heavy vehicle, i.e., passenger bus. Heavier the vehicle, heavier lies the responsibility on the driver to take care. The driver was trying to overtake the motor truck. The motor car was coming from opposite direction and, therefore, he was required to take precaution to avoid any collision. The photographs go to show that some part of motor car was on unmetalled part. The right front side of the motor car has been damaged. It was the right front side of the motor bus that dashed against the motor car. Though it is also true that the driver of the car was also required to take precaution after locating the passenger bus which was trying to overtake the motor truck but as the heavier responsibility lies on the driver of the passenger bus, the major liability would fall on the motor bus driver. Learned Tribunal has held both the drivers equally responsible but in our opinion as the driver of bus was required to take more precaution as he was driving a heavier vehicle, the responsibility of motor bus ought to have been determined to 2/3rd and the responsibility of car driver ought to have been determined as 1/3rd. We, therefore, modify the finding to the extent that the respondent Manohar was responsible to the extent of 2/3rd and the driver of motor car, i.e., Dilipbhai was responsible to the extent of 1/3rd.
7. The next point that arises for determination in the case is as to what would be the just compensation. Learned Tribunal has accepted the income as Rs. 1,190/- p.m. and rightly so, as the same stands proved from the statement of Vallabhbhai, CW 2, but deduction made for insurance, GPF, etc. has been wholly deducted. This is not proper, as the deduction by way of GPF and insurance is a saving and that amount cannot be taken out of the amount of income. Learned counsel for claimants has submitted that deceased Chandubhai was earning nearly Rs. 400-500 p.m. from private tuitions but no witness who has been making payment or who was being taught by deceased Chandubhai has been examined and therefore that part of income has rightly been not considered by learned Tribunal. However, if we take the income of Chandubhai to Rs. 1,190/- which can be rounded up to Rs. 1,200/-, the dependency of the family would come to Rs. 800/- p.m. after making a deduction of V3rd for personal expenses of Chandubhai. In such a situation, the yearly dependency would come to Rs. 9,600/-. The deceased was aged about 43 years and in such a situation multiplier of 10 will have to be applied. Reference may be had to a decision reported in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas 1994 ACJ 1 (SC), where a multiplier of 12 was applied for a person aged 39 years. Thus the amount of compensation awardable as general damages would come to Rs. 96,000/-. The claimants would be further entitled for loss of consortium and loss of love and affection. A traditional amount of Rs. 12,000/-would be sufficient for compensating the loss of consortium, love and affection. Thus the total amount of compensation would come to Rs. 1,08,000/-.
8. The next point that arises for consideration in the case is as to whether the claim would not be maintainable as the owner and insurer of the car have not been made party and as to whether G.S.R.T.C. would be liable to make payment to the extent of 2/3rd of amount only.
This is a case of composite negligence. The driver of the motor car and motor bus both were responsible for the accident to the extent of 1/3rd and 2/3rd. Deceased was occupant of the car. He himself was not driving the vehicle and, therefore, he could not be said to have contributed to the accident.
In such a situation, this will be taken to be a case of composite negligence and the drivers of motor bus and car would be deemed to be joint tortfeasors. A similar question arose before the Division Bench of this Court in a case reported in Manjula Devi Bhuta v. Manjusri Raha 1968 ACJ 1 (MP), the following answer given in that case would be a complete answer to the question posed in this case also:
Where a person is injured without any negligence on his part but as a combined effect of the negligence of two other persons, it is not a case of contributory negligence but is a case of what is styled as 'composite negligence'. If due to the negligence of 'A' and 'B', 'Z' has been injured, 'Z' can sue both 'A' and 'B' for the whole damage. There is a clear distinction between contributory negligence and what is termed as 'composite negligence'. The term 'contributory negligence' applies solely to the conduct of a plaintiff. It means that there has been an act of omission on his part, which has materially contributed to the damage.
XXX xxx xxx It is now well-settled that in 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.
xxx xxx xxx Where a person is injured without any negligence on his part but as a result of the 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.
The following observations made in Law of Torts, 22nd Edn. 1992, by Justice G.P. Singh are also relevant for the purpose:
In a suit for 'composite 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 persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants.
In assessing damages against joint tortfeasors one set of damages will be fixed and they must be assessed according to the aggregate amount of injury resulting from the common act. The damages cannot be apportioned so as to award one sum against one defendant and another against the other defendant, though they may have been guilty in unequal degree. If two omnibuses are racing and one of them runs over a man who is crossing the road and has no time to get out of the way, the injured person has a remedy against the proprietor of either omnibus.
Those who are sued cannot insist on having the others joined as defendants. The mere omission to sue some of them will not disentitle the plaintiff from claiming full relief against those who are sued.
In view of above though both the drivers were liable to the extent of 2/3rd and 1/3rd for the accident but the claimant in this case who are the heirs of deceased Chandu-bhai, had a right to file claim against either of them. If they chose not to file claim against the driver, owner and insurer of the car, it cannot be said that the claim petition is not maintainable.
Since deceased Chandubhai did not contribute to the negligence and it is a case of composite negligence and, therefore, the claimant/heirs have got a right to recover whole of the amount from G.S.R.T.C. without making the driver, owner and insurer of the car as party. If claimants in this case have failed to make driver, owner and insurer of the car as party in the case, it was for G.S.R.T.C. to have filed a claim against them, they cannot be allowed to take shelter of negligence by car driver and cannot be further allowed to demand an apportionment to the extent of their liability.
Learned counsel for G.S.R.T.C. has referred a case reported in Karnataka State Road Trans. Corporation v. Reny Mammen 1991 ACJ 403 (Karnataka) and submitted that it was for the claimant and the Tribunal to have issued notice to the driver, owner and insurer of both the vehicles. In our opinion, the claimants could file claim against the driver, owner and insurer of both the vehicles but if they chose to file claim petition against only one of the joint tortfeasors, they cannot be non-suited.
Even otherwise, as a Division Bench of this High Court has taken a view otherwise than what has been decided in the case referred above, we would accept and affirm the view taken by this High Court.
9. As a result, the appeal filed by the G.S.R.T.C. (MA. No. 228 of 1987) is dismissed with costs. Appeal filed by the claimants (M.A. No. 232 of 1987) partly succeeds. The amount of compensation is enhanced from Rs. 60,000 to Rs. 1,08,000. The same shall be payable by the respondents herein. The claimants shall be further entitled to interest at the rate of 12 per cent per annum from the date of application till realisation of the same. Counsel's fee Rs. 750/- in each of the appeals.
10. This judgment shall be retained in M.A. No. 228 of 1987 and its copy shall be placed in the record of M.A. No. 232 of 1987.