Hon'ble Subhash Chand,J.
1. Heard Sri Nigamendra Shukla for the appellants, Sri Manish Kumar Nigam for Insurance Company and Sri Manviya Tripathi for the owner and driver of the Car.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 25.3.2015 passed by Motor Accident Claims Tribunal/Special Judge (EC Act) Ghaziabad, (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.120 of 2014.
3. Brief facts as culled out from the record are that on 8.1.2014 the deceased along with her husband was travelling by motorcycle, bearing no.UP-16-AH-8708 and when they reached at U-turn near Radission, a Car bearing no.UP-14-BQ-0549 which was being driven rashly and at exorbitant speed dashed the motorcycle from behind due to which both the deceased and her husband suffered multiple injuries. The deceased succumbed to the injuries during treatment on 15.1.2014. The deceased was 32 years of age and was working as IT Analyst in Tata Consultancy Co.
4. The heirs of the deceased instituted a claim petition claiming compensation of Rs.3,20,50,000/-. The Tribunal has considered her income Rs.54,614/- per annum and awarded a sum of Rs.27,85,314/- with interest at the rate of 6 per cent.
5. Learned counsel for the claimants has contended that the finding of the Tribunal in holding the deceased/her husband to be 50% negligent is bad as the deceased has not contributed to the accident having taken place.
6. It is submitted by learned counsel for the appellant that the deceased was 32 years of age and was working as IT Analyst in Tata Consultancy Co. The Tribunal has considered her income Rs.54,614/- per annum but has not granted future loss of income. It is submitted that the deceased was survived by four dependents and, therefore, the deduction of ½ towards personal expenses is bad and it should be 1/4th.
7. It is submitted by learned counsel for the appellant that the Tribunal has not granted any amount under the head of non-pecuniary damages which requires to be considered and granted. He has further submitted that the interest granted by the Tribunal is on the lower side and requires enhancement. The learned advocate has relied on the decisions in the case of Yerramma and others v. G.Krishnamurthy and another, 2014 (4) TAC 337 (SC) and Sarla Devi and others Vs. Divisional Manager, M/s. Royal Sundaram Aliance Ins. Co. Ltd. And another, 2014 (4) TAC 343 (SC). Paragraph no.6 of Yerramma (supra) is quoted herein below:
"6. After thorough consideration of the facts and legal evidence on record in the present case, we are of the view that the collision between the motor vehicles occurred when the respondent-Corporation bus was turning to its right side without showing the turn indicator to enter the bus depot. The driver of the offending vehicle of the respondent-Corporation bus was negligent by not giving the right turn indicator and causing the accident. The driver of the respondent-Corporation bus should have been aware of the fact that he was driving the heavy passenger motor vehicle, and that it was necessary for him to take extra care & caution of the other vehicles on the road while taking the turn to enter the depot. Had the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted. Hence, we are of the view that the Tribunal and the High Court have erred in the apportionment of negligence at 25% on the part of the deceased and 75% on the part of the driver of the respondent-Corporation bus without evidence adduced in this regard by the respondent. But on the other hand, legal evidence produced on record by the appellants in this case would show that the accident was caused on account of the negligence on the part of the driver of the offending vehicle of the respondent-Corporation. Therefore, the erroneous finding recorded by the Tribunal & concurring with the same by the High Court on the question of contributory negligence of the deceased is liable to be set aside. Accordingly, we set aside the same as it is not only erroneous but contrary to law laid down by this Court in the case of Juju Kurivila (Supra).
In our considered view, since the deceased at the time of his death was approximately 53 years of age, therefore, as per law laid down by this Court in the Sarla Verma case (supra), 30% of actual salary for future prospects of the deceased cannot be taken for the purpose of awarding compensation under loss of dependency in favour of the appellants.
Further, with regard to gross annual income of the deceased, to determine the loss of dependency of the appellants, we refer to the case of National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 SCC 763 : 2008 (1) TAC 424, wherein this Court has held as under:-
"19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
20. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under : "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture."
It has also been stated :
'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337."
8. It is also submitted that the Tribunal has not granted medical expenses though she was hospitalized in Pushpanjali Hospital, Ghaziabad, and Rs. 3,00,000/- was spent for her treatment.
9. As against this, learned counsel for the respondents submits that the compensation awarded by the Tribunal is just and proper. It is also submitted that the deceased being in age bracket of 31-35 at the time of accident, the multiplier of 17 as granted by the Tribunal is bad and it should be 16.
10. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the claimants must always prove that the other side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" may apply.
11. The principle of negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.
12. In this case, we do not delve into the issue of negligence as concept of contributory negligence and composite negligence operate in different fields. In one there is deduction as one of the parties to accident was claimant was claimant or his heirs whereas in composite negligence both are liable to the third party who is not the driver or tort-fessor. The tort-fessor may be one of the heirs and no amount can be deducted where the tort-fessor claims as legal representative. We, therefore, leave the question open as far as contributory negligence.
13. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in tkenhe case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
14. It is admitted position that the opponents - owner and driver after filing written statement never orally substantiated what they had averred in written statement. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care. In this case the deceased was not the author or the co-author of the accident. On facts, the deceased was not plying the vehicle, hence, the deduction of 50% from the compensation awarded is bad and is set aside. The husband, who was plying the motorcyle, is not claiming for his own damages. He is claiming for the death of his wife and, therefore, the principles enunciated in Kheynei (supra) will be applicable. The claimants are heirs of non-tortfessor and hence no deduction is permissible from their claim.
COMPENSATION EVALUATED ;
15. The submission is that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra)(4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5)National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. v/s.Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:
"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.
para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.
para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."
16. Thus even in year 1990 to 2010, the addition of future prospects was not ruled out, just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated by citing decision though of persuasive value of Gujarat High Court referred herein above wherefore, the submission of learned Advocate for respondent that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing when the accident occured.
17. Even in the earlier days, the factors to be considered for issuing quantum of compensation reads as follows:
i. To give present value, a reasonable deduction or reduction is required as lump sum amount is given at a stretch under the head of prospective economic loss;
ii. The tax element is also required to be considered as observed in the Gourley's case (1956 AC 185).
iii. The resultant impairment/death on the earning capcity of the claimant/claimants .
iv. That the amount of interest is awarded also on the prospective loss of income.
v. That the amount of compensation is not exemplary or punitive but is compensatory.
18. Hence we now propose to calculate the compensation payable to the legal heirs of the deceased.
19. The facts will permit us to rely on the said decisions. The Tribunal has assessed the income of the deceased to be Rs.54,614 per annum which is undisputed. To which 50% will have to be added as future prospects. The finding that in IT field there will be recession and deceased could have lost the job hence no future could be awarded is absurd and smacks of perversity. Even as per the earlier decisions, 1/2 will have to be deducted as we are convinced that the deceased was survived by dependent namely including one minor son aged 1 year 8 months. Husband cannot be called dependant in absence of proof. The multiplier would be 16 as the deceased was in the age bracket of 31-35. As far as amount under the head of non-pecuniary damages is concerned, we grant Rs.70,000/-. The Tribunal has not granted medical expenses though she was hospitalized hence we grant Rs. 1,00,000/- towards medical expenses as the accident occurred on 8.1.2014 and deceased passed away on 15.1.2014.
20. Hence, the total compensation payable to the claimants is computed herein below:
i. Monthly Income Rs.54,614,/-
ii. Percentage towards future prospects : 50% namely Rs.27,307/-
iii. Total income : Rs.54,614 + 27,307 = Rs.81,921/-
iv. Annual Loss of Dependency : 81,921 x 12 = 9,83, 052/-
iv. Income after deduction of 1/2 : Rs.4,91,526/-
v. Multiplier applicable : 16 vi. Loss of dependency: Rs. 4,91,526 x 16 = Rs.78,64,416/-
vii. Amount under non-pecuniary head : Rs. 70,000/-
viii. Amount for medical expenses: Rs. 1,00,000/-
ix. Total compensation : 80,34,416/-
21. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
22. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
23. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers.
24. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.
25. We make it clear that 30% can be recovered by the Insurance Company from the owner, driver and Insurance Company of the motorcycle by the mode suggested by the Apex Court.
26. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein.
27. This Court is thankful to both the counsels to see that this very old matter is disposed of.
Order Date :- 17.9.2021 Irshad