The New India Assurance Company Limited, Amravati, through its Regional Manager, Nagpur vs Shobha wd/o Panjabrao Dhurve

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Bom) 1688

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR
A.P. Bhangale, J
The New India Assurance Company Limited, Amravati, through its Regional Manager, Nagpur…….. Appellant
Versus
Smt Shobha wd/o Panjabrao Dhurve ….Respondents
First Appeal No. 1058 of 2007
Decided on : 9th December 2009

Advocates appeared:
Mr Mahesh Joshi, Advocate for appellant
Mr L.S. Patil, Advocate for respondents no. 1 to 7 Mr S.K. Pardhy, Advocate for respondent no.3

Headnote:MOTOR VEHICLES ACT, 1988 - Sections 165 and 166, Schedule II - Award of compensation - Contributory negligence - Apportionment of liability - Appeal by insurer challenging award of compensation of Rs. 4,00,000/- - Deceased, aged 31 years, earning Rs. 3000/- p.m. - Held - As per Schedule II, appropriate multiplier of 13 applied - Amount worked out at Rs. 3,27,000/- with interest @ 7.5% p.a. - Impugned award modified accordingly - Liability for negligence of drivers of two vehicles, one jeep and another of truck can be apportioned at 60:40 basis - Amount can be recovered by claimants from anyone of tortfeasors - Appeal allowed. - In case of composite negligence, each wrong doer is jointly and severally liable to the injured for payment of entire compensation. Legal heirs or legal representatives of victim in such case need not establish or prove the extent of responsibility of each driver (wrong doer) separately nor it is necessary for the Tribunal to determine the extent of responsibility of each driver (wrong doer) separately, claimants are free to recover the compensation awarded from any of the wrong doer (tort feasor) which they like. This tortfeasor who makes the payment will be free to recover/realise the amount paid from other tortfeasors.
       In Courts opinion, driver of the truck keeping it stationary or parked on a high way at night time without indicating by tail-lights or back lights about the fact that the truck is parked stationary at one place. In also responsible for the accident with that of the jeep driver who drove negligently at a high speed. In case of composite negligence amount of compensation cannot be apportioned because claimants cannot be directed to proceed to recover the apportioned amount from each vehicle owner/ insurer involved in the accident. However, from the material on record in this case, amongst drivers involved in the accident (tortfeasors) it appears reasonable to hold jeep driver negligent to the extent of 50% and truck driver to the extent of 40%. In the facts and circumstances of this case.
       For reasons stated above, the appeal is partly allowed. The impugned judgment and award is modified with direction that Insurance Companies for Jeep as well as Truck (offending vehicles), owners and drivers thereof shall pay compensation in the sum of Rs. 3,27,000/- jointly and severally to the claimants with interest at the rate of 7.50 per cent per annum from the date of claim petition till realisation (after adjusting the deposits or payment already made to claimants). The claimants are free to realise the amount from any of the tortfeasors/owners/insurer of offending motor vehicles as they may like and the tortfeasor/insurer who made the payment of compensation shall be free to recover the apportioned amount from other set of tortfeasors/owner/insurer. Costs of the proceedings shall be paid to claimants proportionate to their share. Payment already made be adjusted accordingly and excess amount if any, be refunded to party who deposited it. Appeal allowed accordingly.

Judgment.

1. The appellant has challenged validity and legality of the judgment and Award dated 30.7.2007 passed by the Member, Motor Accident Claims Tribunal, Amravati in MACP No. 118 of 2004 whereby the Tribunal awarded compensation in the sum of Rs. 400,000/- inclusive of no fault liability along with interest at the rate of 7.5% per annum from the date of petition till realisation. The amount of compensation was apportioned in the ratio of 50 : 50 between owner/driver of the offending vehicle and insurers of the offending motor vehicle Jeep bearing registration No. MH-27-H-1034 driven at a high speed and owner/driver/insurer (appellant) of the Truck bearing registration No. MP-09-KB-1907 kept standing on the road without tail lights on.

2. On 20.12.2003 at about 09.30 p.m. Panjabrao Bapurao Dhurve, aged about 40 years, was travelling by jeep (owned by his friend) bearing No. MH-27-H-1034 from Dharni to Amravati. The accident occurred while jeep was on Paratwada-Amravati Road in front of Fatima Convent when it had dashed against the Truck bearing No. MP-09- KB-1907 kept standing on the road without tail lights on. 4 The Jeep driver drove in high speed and jeep was dashed against the Truck from its back-side. In the result, Panjabrao Bapurao Dhurve died on the spot due to negligence of drivers of both the motor vehicles.

3. Claimants contended that the deceased Punjabrao was the only earning member of their family and used to earn Rs. 3000/- per month by doing agricultural labour work and used to work on his own field and taking crops of about Rs. 50,000/- per year. He was ambitious, hale and hearty; dynamic, enthusiastic having pleasant personality without any ailment or vices and had planned to built high living standard for the family, but on account of the accident, entire planning collapsed and claimants-dependents lost their support and beloved family member and suffered irreparable loss.

4. The claimants claimed compensation in the sum of Rs. 6,75,000/- on account of loss of income for future; loss of amenities of life and also loss of love and affection; pains and sufferings; loss of consortium; funeral expenses etc. Interest on award amount was demanded at the rate of 18% per annum with costs.

5. Respondents insurer and owner of offending motor vehicle resisted the claim by their written statements and denied liability to pay compensation.

6. Claimant Smt Shobha widow of deceased deposed in support of claim to establish that deceased Punjabrao left behind four children taking education and parents apart from her and that he was travelling in Jeep No. MH27-H-1034 belonging to his friend gratuitously without paying any fare and he died due to accident which occurred due to negligence and fault of both offending vehicles. Witness No. 2 K.L. Tekam is eye witness to the accident who was co-traveller with deceased travelling without fare in Jeep MH-27-H-1034 belonging to their friend Prakash Kakade. It was driven by driver Rajesh Kakade in high speed and gave dash to the back-side of truck standing in the middle of the road in front of Fatima Convent without tail lights on at night-time, thus jeep driver who could not control the vehicle collided with the truck.

7. Learned counsel for the appellant advanced submissions at length in support of appeal. He did not dispute that the offending truck (involved in the accident) was validly insured covering the date of accident. But assailed quantum of compensation awarded by the Tribunal on the ground that reasons were not discussed to justify the award which resulted into excessive award. It is further submitted that contributory negligence between the drivers of offending motor vehicles ought to have been apportioned as 60% for the jeep driver and 40% for the truck driver in view of ruling in Gujarat State Road Transport Corporation v. Rameshbhai Parsottambhai reported in 2003 (2) T.A.C. 147 (Guj). Reference is also made to ruling in National Insurance Co. Ltd. v. Chand Ratan and

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