2013 Supreme(Bom) 1277

In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
Maharashtra State Road Transport Corporation, through its Divisional Controller
Versus
Pundlik Natthuji Adagale & Others
First Appeal No. 533 of 2003
Decided on: 12-07-2013

Headnote:Motor Vehicles Act, 1988 - Section 166 - Claim of compensation.

       Tribunal, while determining compensation payable to claimants/dependents of deceased required to consider age group of dependents also apart from age group of deceased for adopting appropriate multiplier. - In the leading ruling in Sarla Varma v. Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 (4) All MR 429 (SC), Hon’ble Supreme Court discussed the essential guidelines settled by judicial precedents so as to arrive at the uniform figures of awards for compensation in similar set of facts it is now settled legal position that Just compensation is adequate compensation which is fair and equitable, in the facts and circumstances of the case, to make good the loss suffered by the claimant/s as a result of the motor accident which is actionable wrong. It is wrong which is compensatable in terms of money, as far as money can do so, by applying the well-settled principles relating to the award of compensation.

       It is not intended to be a bonanza, largesse or source of profit for the claimants at the cost of public money with insurers. Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have single formulae with mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range.

       When the factors/inputs are the same, and the formulae/legal principles are the same, consistency and uniformity, and not divergence and friskiness, should be the result of judicial adjudication to arrive at just compensation. Thus just compensation ought to be computed in view of the aforesaid guidelines as laid down in the ruling of Sarla Verma v. Delhi Road transport Corpn., (2009) 6 SCC 121.

       Motor Vehicles Act, 1988 - Section 166 - Claim of compensation.

       Where rash and negligent driving of offending Vehicle (Bus) causing death of deceased, occupant of Jeep and injuries to others, established therefore claimants entitled to compensation. - There is no independent eye-witness to depose as to how the incident had actually occurred. But Court have FIR indicating that the accident occurred due to the negligence on the part of the Bus driver. The Bus gave dash to the Jeep. The Jeep was entangled near the right rear wheel of the Bus. One of the occupants of the Jeep died while other 8 persons including the driver were injured. Bus driver denied this fact which renders his testimony doubtful and credit less. Driver of the Bus was proceeding from Shegaon to Khamgaon while Jeep was going towards Shegaon. Professional S.T. Bus driver was expected to slow down and avoid the accident if he had seen the jeep from long distance coming from opposite side in a zigzag manner as claimed by him in his testimony.

       The Jeep would not have been heavily damaged in the accident as mentioned in the spot panchanama without a forceful dash. The width of the Road was 15 feet with five feet on either side. The Bus was being plied in the Middle and not on left side of the Road. The observations made in the spot panchanama negatived the interested version of the driver of the Bus that he was driving at the speed of 30 to 40 k.m. per hour. Because the Bus was found at the middle of the road and not on the left side of the road, inquest panchanama (Ex. 23).

       The version of the Bus driver that he was trying digging his Bus on the left side of the Road is not acceptable as contrary to the evidence on the record. The Bus driver had shown the tendency to deny the fact that there were nine persons in the Jeep including the driver of the Jeep as mentioned in FIR although One of them was dead and seven persons were 6 injured. As against this no any injury was caused to the driver of the Bus and to any of the passengers from inside the Bus.

       All these materials and circumstances go to show prima facie that there was no negligence on the part of the Jeep driver, owner and insurer thereof so as to require the claimant to implead them unnecessarily in the claim petition. In the present case, The S.T. Bus had dashed against the Jeep very violently as a result of which it got badly smashed and Chandu, deceased passengers died on the spot while others in the Jeep got injured. The jeep was heavily damaged in the accident, indicating excessive speed of the Bus. This is a case in which the accident speaks for itself and the principle of res ipsa loquitur would apply with full force. Such a violent dash against the Jeep could not have been possible had not the bus being driven very rashly and negligently. The inference raised by the Tribunal against the driver of the S.T. Bus was well founded.

       Motor Vehicles Act, 1988 - Section 166 - Necessary parties to claim petition for compensation.

       Where accident involved two motor vehicles therefore impleadment of driver, owner and insurer of vehicle which got damaged, in claim petition not necessary. - When the insured motor vehicle meets with an accident while driven by the employee of the insured, primary liability is of the driver and the owner of the vehicle becomes vicariously liable. Insurer would pay for such vicarious liability of the owner pursuant to the insurance contract. Third party for whose benefit the insurance contract was entered into is required to establish under Section 166 of the Motor vehicle Act that the driver was negligent to drive the vehicle resulting in the motor vehicle accident and the owner of the offending motor vehicle is vicariously liable and that the insurance company is bound to indemnify the owner.

       Thus each tort-feasor is answerable for to pay the compensation. While considering the question as whether the claim application would suffer from the defect of the non-joinder of necessary parties when the claimants did not implead the owner, driver and the insurer of the other vehicle damaged in the road accident, the Apex Court in the ruling in Gujarat State Road Transport Corporation v. Shardabai and others, 1997 ACJ 649, has made the legal position clear. It made reference to the observations in the Law of Torts 22nd Edition 1992, by Justice G.P. Singh with approval as under : -

       "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 tort-feasors 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.’’

       The law is well-settled, in an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them.

       The joint tort-feasors may have action of appointment of the blame between them inter se for to enforce contribution, if they are so advised. They cannot insist that they ought to have been sued or proceeded against jointly by the claimant for to demand the compensation.

       Thus in the claim petition the wrong-doers collectively or joint tort-feasors may be proper but not necessary parties to decide the claim for just and fair compensation payable for the motor vehicle accident caused.

       The Tribunal was right to hold the driver of the Bus responsible for the accident caused to the Jeep and the claimants representing the deceased Chandu were entitled to get the compensation. One more contention is that the Jeep was used commercially and hence the appellants are not responsible to pay the compensation.

       The question then arises about the quantum of the compensation payable to the dependant-claimant. It is in evidence that Chandu who was aged 27 years at the time of his death (deceased in this case) and was an Asst. primary teacher posted at primary School Bhone earning salary of 7142/- per month with a school under the Control of Panchayat Samiti, Sangrampur, since the year 1998. Loss of dependency computed on the basis of the monthly income of the deceased and the choice of multiplier 18 would get attracted as the victim was of the age group of 26 to 30 years. But the Tribunal is also bound to consider the age group of the dependants-claimant parents were stated in the age group of 45 to 50 years, number of dependants were stated four including brother aged 24 years and unmarried sister aged 21 years old.