BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL: CACHAR: SILCHAR: ASSAM

Transcription

1 1 BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL: CACHAR: SILCHAR: ASSAM Present: Shri B. Debnath, B.Com, LLM, AJS. Member, Motor Accident Claims Tribunal, Silchar. JUDGMENT IN MAC CASE NO 212 OF 2011 Smti Pronoti Ghosh and 2 others... CLAIMANTS V E R S U S 1. M/s ABCI Infrastructure Pvt. Limited :Owner of Maruti Van 2. Nipom Sharma :Driver of Truck 3. National Insurance Co Ltd :Insurer of Maruti Van 4. Prem Prakash :Owner of Truck 5. Chuna Ram :Driver of Truck 6. Oriental Insurance Co :Insurer of Truck... OPPOSITE PARTIES APEAREANCE: Shri R.Ghosh Ld. Advocate Smti A.S Mitra., Ld. Advocate Smti Tuhina Sharma, Ld. Advocate :For the claimant :For the OP3 :For the OP5 Institution of the case : Date of argument : Date of Judgment : J U D G M E N T 1. Parents and younger sister of the deceased Biswajit Ghosh brought this claim case for award of compensation under Section 166 MV Act on account of death of the deceased Biswajit Ghosh due to motor accident took place on the National Highway at Natun Bazar under Sonai PS on 06/12/2010 at night about 10:00 PM. To get the compensation the claimants narrated the fact of accident as below:- 2. Late Biswajit Ghosh (hereinafter referred as deceased ) was a Junior Engineer (Civil) under M/s ABCI Infrastructure Private Limited of Club Road, Silchar 1. He joined in the service just less than one month prior to date of accident on 11/11/2010. On the fateful date of the accident deceased was proceeding towards Dholai Work side of his company by the Maruti Van bearing Registration No. AS-11/D-5107 (referred as 'Maruti

2 2 Van'). There were some other occupants also in the vehicle. The vehicle was proceeding towards the destination in a very rash and negligent manner. When the vehicle reached at Natun Bazar in front of Petrol Pump it dashed against a stationary Truck bearing registration No. GJ/9V-9916 (referred as 'Truck'). As a result of the said accident some of the occupant of the aforesaid Maruti Van sustained injuries. 3. Immediately after the accident the deceased was shifted to Silchar Medical College & Hospital as he sustained grievous head injuries. He was admitted as indoor patient and thereafter referred to higher center but could not proceed immediately and at the time of preparing the claimants themselves to go outside to shift the deceased to higher center for treatment,on 11/12/2010 at night in their rented house health condition of the deceased being deteriorated. Then the deceased was again shifted to Silchar Medical College and Hospital (in short SMCH) but unfortunately the deceased succumbed to injuries. 4. In the course of process, Post Mortem examination on the dead body of the deceased was conducted by the Forensic Surgeon of SMCH. In connection with the said accident FIR was lodged by one Sanjib Nath. On receiving the formal FIR the Officer-in-Charge, Sonai PS registered the Sonai PS case No. 354/10 dated under Section 279/304 (A) and thereafter prepared Accident Information Report. On completion of investigation Charge Sheet submitted against the driver of the Maruti Van. The said driver has been charge-sheeted under Section 338/304(A)/427 IPC. 5. On receiving the copy of Accident Information Report the claimant submitted the instant claim case against owner, driver and insurer of both the vehicles. The owner, the driver and the insurer of Maruti Van have been arrayed as OP1, OP2 and OP3 respectively. The owner, driver and insurer of the Truck bearing Registration No. GJ/9V-9916 have been arrayed as OP4, OP5 and OP6 respectively. The owner and Driver of the aforesaid Truck submitted W/S but did not contest the case. Of course the Insurance Companies of both the vehicles submitted their separate WS. The National Insurance Company is the insurer of the Maruti van and Oriental Insurance Company is the insurer of the Truck aforesaid. 6. Oriental Insurance Company denied the alleged accident and took a defence plea that the driver of the Maruti van was in fault for which, Insurance Company of the Maruti van is liable to pay compensation. Whereas the insurer of Maruti van in its WS denied all the material facts and stated that the deceased was traveling by the Maruti van with other gratuitous passenger and the accident was occurred due to wrong parking of the aforesaid Truck and as such due to fault of the driver of the Truck, the Oriental Insurance Company is liable to pay compensation. Other OP also did not contest the case. 7. During hearing the claimant side examined Smti Pronoti Ghosh, the mother of the deceased as PW1 and exhibited Accident Information Report, FIR, Charge Sheet and other relevant documents including the Post Mortem Examination Report and cash memos. The claimant also

3 3 submitted Salary certificate of the deceased to establish the fact that at the time of death of the deceased he was receiving salary of Rs.18000/- per month. The claimant also examined one Sri Swarup Dutta Rai as PW2 to prove the fact that deceased was drawing his salary at the rate of Rs per month and he exhibited salary certificate vide Ext9. The claimant side also examined the Sr. Manager of the ABCI Infrastructures Pvt. Ltd. as PW.3 to establish the facts that deceased was appointed as Site Engineer and salary of the deceased was Rs 18,000 per month. The said witness also exhibited a debit voucher, vide Ext.16 to establish the facts that mother of the deceased received Rs 18,000 as full month salary. He also exhibited compensation structure (salary structure) of the employee of the aforesaid company. The appointment letter is Ext.11, the Ext.16 is the debit voucher and Ext.15 is the Salary Structure of employee of the company including Graduate Engineer, Diploma Engineer and other Commercial employee of the ABCI Infrastructure Pvt. Ltd. Company. The contesting OP cross-examined the PW1, PW.2 and PW3 but did not examine any defence witness. 8. Heard argument of both side s counsels and perused the written argument of both the parties along with evidence available on record. POINT FOR DETERMINATION 1. Whether the stationary Truck bearing registration No. GJ/9V was wrongly parked and if so, whether due to wrong parking of the Truck the accident was occurred? 2. Whether the driver of the Maruti van was in rash and negligent driving? 3. Whether the deceased met accident and due to accident he died? 4. What relief/reliefs the claimants are entitled? POINT No.1 9. The claimant brought the claim case against both the owner the drivers and the Insurance Companies of both the vehicles. But in the claim petition claimants subsequently stated that accident was occurred due to rash and negligent driving of the driver of the Maruti van. At the time of deposing the PW1 also stated that driver of the Maruti van was driving the vehicle in a rash and negligent manner and as such when the said vehicle

4 4 reached in front of Natun Bazar Petrol Pump it dashed against a stationary Truck bearing Registration No. GJ/9V-9916 which was parked on the road. 10. The claimant has neither in the claim petition nor in the deposition stated that the Truck was wrongly parked or even nothing has been informed to this Tribunal through evidence as how the stationary Truck was parked on the road. But during submission of the written argument the learned Advocate of the claimant relied on the decision of Supreme Court in New India Assurance Company Limited Vs. Smti Kalpana and others, (2007) 1 TAC 795 and tried to convince this court that if the vehicle is parked on the road without due caution and care and without using any parking light then that vehicle is also responsible for the accident. In the similar tune the learned Advocate of the National Insurance Company Limited tried to convince this Tribunal that accident was occurred due to wrongly parking of the Truck. 11. I agree that if the Truck is wrongly parked on the road without using parking light and without taking other precaution at night certainly the driver of the stationary Truck was in fault to some extent for occurrence/commission of Road Traffic Accident. But in the instant case defence plea has been taken by the Insurance Company for which it is the burden of the National Insurance Company to bring some convincing material before this Tribunal to conclude the fact that the Truck was wrongly parked on the road without using parking light and taking other precautions. But nothing revealed from the evidence on record. 12. I have gone through the FIR, Charge Sheet and other Police papers. Nothing has been mentioned as how the Truck was parked or whether the Truck was parked wrongly. That is why, only on the presumption, the owner of the Truck can not be held liable. Rather, if I go through the contents of the Charge Sheet vide Ext10 it can be reflected from the fact mentioned in the Charge sheet that driver of the Maruti van lost control and dashed the backside of the stationary Truck. The said Charge Sheet has been exhibited by the claimant and which remained unchallenged on the evidence on record. That is why, in this case I do not find any material to opine that the Truck was wrongly parked at the relevant time of accident and due to wrong parking of the Truck the accident was occurred. Rather evidence available on the record that due to rash and negligent driving of the Maruti van the accident was occurred. Therefore,

5 5 owner, driver and insurer of the Truck are not responsible as well as liable to pay compensation in this case. 13. It is pertinent to mention in this case that rash and negligent driving are expressed by the Supreme Court in Rathanashalvam vs State of Karnataka and State of Karnataka Vs Murlidhar AIR 2007 SC 1064 and AIR 2009 SC 1621 respectively. In Rathanashalvam s case (supra) Supreme Court defined rashness as follows : Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injuries. The criminality lies in such a case in running a risk of doing such act with recklessness or indifference as to the consequence. 14. In Murlidhar s case (supra) the Supreme Court also defined the word negligence as follows: negligence means omission to do something with reasonable and prudent means granted by the consideration which ordinarily regulate human affairs or doing something which is prudent and a reasonable means guided by similar consideration would not do. 15. In this case the claimant not only exhibited Accident Information Report vide Ext1 but also exhibited FIR, Charge Sheet, Seizure List and PM Report. The aforesaid documents are sufficient to hold that accident was occurred at the relevant time as stated by the claimant and it was occurred due to negligence of the driver of the Maruti van. POINT No In the instant case there are no specific evidence or convincing materials are available to opine that the driver of the Maruti van while driving the vehicle was obstructed by any foreign object rather he was driving the vehicle on the road at night with the passengers that is why, he ought to take extra care and caution keeping in mind the comfort of the occupant of the vehicle. But evidence so far available on the record do not support the driver that he was driving the vehicle with utmost care and caution. Rather he dashed a stationary Truck which means the reckless driving.

6 6 Hence it is concluded that the accident was occurred at the relevant time as stated by the claimant and it was occurred due to negligence of the driver of the Maruti van. POINT No PW1 is not eye witness of the accident but she deposed in detail as how the accident was occurred and also deposed that the injured person was brought to SMCH and thereafter while staying in a rented house with a planning to go outside for treatment the deceased died. The said fact is not challenged by any of the contesting OP. Rather the claimant in addition of oral evidence submitted Hospital Discharge Certificate vide Ext4, Cause of Death certificate of SMCH vide Ext5 and Post Mortem report vide Ext6. The aforesaid documents has made the facts very clear that the deceased died on at night at SMCH due to shock resulting from injuries sustained which were ante-mortem and caused by blunt force impact. The description of injuries also mentioned in Ext4 and Ext5 as follows: (1) Posterior dislocation of left hip joint and (2) Head injury. Ext4 also mentioned in diagnosis column that the aforesaid injuries were sustained due to RTA on 06/12/200. Therefore, it can be concluded without hesitation that the deceased died due to aforesaid injury the said vital and material facts are remaining un-rebutted in the evidence on record. POINT No This is a death case. That is why guiding principle of Supreme Court in Sarla Verma and others vs Delhi Road Transport Corporation and another, 2009(2) TAC 677 (SC) and in subsequent cases are to be followed. 19. In Sarla Verma s (supra) case the Supreme Court held that when an unmarried person died leaving behind his parents only as his legal representatives, the multiplier to be selected on the basis of average age of the parents but in Amrit Vanu Shali and others vs National Insurance Company Limited, 2012 (4) TAC 775 (SC) Supreme Court subsequently held that when an unmarried person dies living behind parents and others the multiplier is based on the age of the deceased and not on the age of the dependents on the reasoning that there may be a

7 7 number of dependents of the deceased whose age may be different. So age of the dependents has no nexus with the computation of compensation. 20. Keeping in mind both the guiding principle of Supreme Court the learned Advocate of the claimant has tried to convince this Tribunal to apply the guiding principles of Amrit Vanu s case (supra). His reasoning is that the deceased left behind his parents and younger sister. But the learned Advocate of the contesting OP stated that when the father is alive and he is an able bodied person he could not be treated as dependent on the income of his son. He further argued that when father is not Dependant how an unmarried sister of the deceased to be dependent on the income of the deceased. For which, in the instant case as per the learned advocate of the contesting OP only mother of the deceased is to be treated as dependent and in that count age of the deceased should not be taken into consideration to select the multiplier rather age of the mother is the relevant factor. 21. I have gone through the entire record and evidence and found nothing in this case regarding how the deceased was maintaining the family of his parents and younger sister because it is evident that he joined in the service just less than one month prior to his death only. He was not maintaining the family rather it was the beginning of his career. As such naturally his younger sister was not dependent on him rather she was dependent on the income of her father. 22. Keeping in mind the aforesaid fact, at this situation, I am of opinion that only the mother of the deceased is taken in to consideration as dependent in this case for the sake of assessment of compensation. As such age of the mother will be taken into consideration to select the multiplier. She is 44 years as per the claim petition. But no age proof document exhibited. Subsequently as per my order dated 30/05/2014 Voter ID Card of the mother of the deceased submitted. As per Voter ID card she was 30 years as on That is why, keeping in mind the date of death of the deceased on 11/12/2010 she was 44 years and plus. Thus the multiplier '14' is selected from the Column No.4 of the table formulated in the case of Sarla Verma (supra).

8 8 23. Of course the father and younger sister may be treated as legal representatives of the estate of the deceased and if the compensation is awarded 3 (three) claimants may get shares. But to select the multiplier I am taking into consideration the number of dependency. In this case only one person is considered as dependent, so 50% of the annual earning of the deceased is to be deducted towards the personal and living expenditure of the deceased. 24. The PW1 deposed that the deceased was getting salary of Rs and working as Junior Engineer(Civil).To support that deposition exhibited salary certificate vide Ext9. PW2 being an official witness of ABCI Infrastructures Pvt. Ltd. deposed to support the above facts to state that monthly salary of the deceased at the time of joining in the service was Rs 18,000. The PW 3 Kalyan Barman being the Senior Manager of the said Company deposed that deceased was allegedly working as a Site Engineer and getting salary of Rs 18,000 per month. Ext.9 also speaks that deceased was neither Junior Engineer nor Site Engineer but Civil Engineer and Remuneration was Rs 18,000. However, the PW.2 deposed in detail and also stated that salary certificate was issued by Shri Kalyan Barman, Senior Manager and at the time of Joining salary of the deceased was Rs.22000/- per month. 25. The PW 3 exhibited Appointment Letter of the deceased as Ext11 and also stated that if the deceased would alive his salary to be increased to Rs In support of that facts he also exhibited one document vide Ext12. This is another Salary Certificate with increased amount. Perhaps the increase amount has been taken by the author of the Ext.12 keeping in mind the a hypothesis that deceased alive and continuing the service in the same post. The PW 2 also replied during cross-examination that Ext.12 was prepared on

9 9 the basis of some guesswork on the condition that if the person concerned would alive till to day his salary might be reached as stated above. 26. However from the deposition of the PW2 it has been revealed that the deceased allegedly served in the aforesaid company since 11/11/2010 for 25 (twenty) days only and died without receiving any amount as salary. However, the PW 2 further deposed that mother of the deceased received Rs 18,000 as full salary. During cross-examination the learned Advocate of the Oriental Insurance Company challenged the genuineness of the Ext.9, Ext.11 and Ext.12. The contesting OP(National Insurance Co. Ltd.) while put a question during cross examination of the PW.2 he replied as: The salary of the deceased has been released but relevant documents are not available with me to produce before this court. I handed over the cash salary of Rs to the mother of the deceased. The learned advocate of the National Insurance Co. Ltd. put a denial suggestion that the PW.2 did not hand over one month's salary of Rs 18,000 to the mother of the deceased for which no documentary proof had been produced before the court. 27. I have gone through the Ext.11 Appointment letter. As per the contents of the said letter the deceased had been appointed as Civil Engineer in view of interview dated 05/11/2010 and the appointment came in to effect from 11/11/2010. It has been also mentioned in the said appointment letter that remuneration of the deceased was Rs 18,000 per month subject to statutory deduction. The Ext.12 speaks that the deceased was working in the said company as

10 10 Civil Engineer since 11/11/2010. Both the documents have been challenged by the contesting OPs. That is why the PW 2 appeared and deposed on behalf of the ABCI Infrastructures Pvt. Ltd. But on careful perusal of the Ext.11 and Ext.12 I do not find the date of issue of the appointment letter except a Reference ABCI/GHY-HR/ dated 10/11/2010 on the left side of the top of the Ext.11. Moreover from the deposition of the PW 2, I do not find any official documentary proof to establish the fact that after death of the deceased Rs 18,000 has been handed over to the mother of the deceased as salary for one month. How and when the PW 2 handed over one month salary to mother of the deceased is not cleared from the evidence on record deposed by him. Whether he handed over that amount from his own pocket or he was directed by his higher authority to release the said amount is not cleared. He explained nothing in that aspect. If his higher authority directed to hand over one month salary of Rs 22,000 to mother of the deceased, there must be an official order for releasing the amount. To a question by the learned advocate of the Oriental General Insurance Co. Ltd the PW 2 replied as below: As per Company Act 1956 there should be a resolution of the Board of Director in respect of fixation of salary of the employee of the Company. Our company is also maintaining the resolution, book of accounts etc. But book of account is not produced before this Court. 28. In this case after a couple of months of examination of PW 2 the claimant examined Sri Kalyan Barman as PW 3. Said witness deposed that he has been authorized by Managing Director of ABCI Infrastructures Pvt. Ltd. to appoint any

11 11 person on behalf of the company. That means he is claiming himself as appointing authority. To support the said deposition he exhibited a certificate vide Ext.14. The Certificate is as This is to certify that Mr. Kalyan Barman, Sr. Manager HR is the authorized appointing person of the company. His signature is attached below. The PW3 deposed that Ext 11 is the appointment letter and his signature is Ext.11(1). He also deposed that he issued the Ext.9. Not only that but also deposed that mother of the deceased received full month salary of Rs 18,000 and in support exhibited debit voucher vide Ext.16. On careful perusal of the Ext.16 it is revealed that Rs 22,000 allegedly paid on cash to Smti Pronoti Ghose as salary for the period from 11/11/2010 to 06/12/2010 and not for the full month. The said document bears no date. Of course, signature of the recipient is available but the claimants did neither whisper in their claim petition nor the PW 1 the mother of the deceased Smti. Pranati Ghosh deposed nothing in her deposition regarding receiving of Rs 18,000 from the company on cash or in any other mode on any date. Her silence in respect of material facts has created a doubt. 29. As per established principles material facts must be brought by the claimant in the claim case to establish for the sake of entitlement of compensation and to make the facts establish supporting evidence may be required in appropriate case. If the claimant really received the aforesaid amount of salary in cash from the employer of the deceased she ought to bring that fact of receiving the cash amount of Rs 18,000 before the Tribunal to establish the facts of monthly salary of the deceased. In the instant case as per claimants the deceased

12 12 did not receive salary in his life time but without bringing any material facts of receiving one month salary by the mother of the deceased the PW 2 and PW 3 brought the new facts of handing over Rs 18,000 to the mother of the deceased as full month salary whereas Ext.16 does not reflect the facts of handing over full month salary rather 25(twenty five days) salary. If the said amount is for 25(twenty five days) than monthly salary would be Rs 26,400 but the claimants have not pleaded for the said amount as monthly salary. More over it is admitted facts that the increased amount mentioned in the Ext.12 on the basis of guess work and Ext 11 appointment letter bears no date of issue. That is why Ext 14 Certificate cannot give any retrospective effect of power of appointment to the PW 2 unless and until a specific clause is mentioned in the Certificate regarding retrospective effect to the appointment of the deceased. 30. The Ext 11 is the base document to establish the fact that deceased was Civil Engineer of ABCI Infrastructures Pvt. Ltd and Ext 16 is the supporting document to establish the monthly salary of the deceased. But in this case the Ext 16 cannot be believed as genuine documents for the reasons stated above. Moreover the base document (vide Ext.11) bears no date of issue for which without other supporting document such as Service record of the deceased maintained by the ABCI Infrastructures Pvt. Ltd. it cannot be fairly determined the facts that the appointment letter was issued prior to the death of the deceased by duly authorized person. 31. The claimants pleaded that deceased was Junior Engineer(Civil) of the ABCI Infrastructures Pvt. Ltd. But the

13 13 PW 3 did not supported that the deceased was Civil Engineer, rather deposed that deceased was Site Engineer. To make the plea convincing to the Tribunal the PW 2 exhibited appointment letter, vide Ext.11 and the PW 3 deposed that he issued the Ext.11 as authorized appointing authority in view of Ext14. On perusal of the Ext.11 appointment letter it is opined that the documentary proof does not support the facts because as per the Ext. 11 the deceased was neither a Junior Engineer nor a Site Engineer but a Civil Engineer. 32. The PW 1 replied during cross-examination that deceased was diploma holder from Polytechnic. The PW 3 exhibited Compensation Structure of Diploma Engineer, Graduate Engineer and Commercial employees vide Ext.15. I have gone through the contents of Ext 15. This is a photo copy of HR Manual. In the page '14' the compensation Structure is given for Diploma Engineer. There are 10(ten) categories listed with Salary range per annum but the said categories do not included the position of Civil Engineer. Of course, in the page No '13', in category No.12, position of Graduate Civil Engineer is mentioned with Salary range. The PW 3 wanted to say that the Ext.15 is the Salary Structure of various categories of employees but he did not know as why word 'compensation' is mentioned in place of salary. Whatever may be real intention of the authority of ABCI Infrastructures Pvt. Ltd. to use the word 'Compensation' in place of Salary but Ext.15 does not support the the facts that a diploma holder can be appointed by the PW 3 as 'Civil Engineer'. 33. On the other hand the claimants submitted an attested copy of Provisional Certificate. I have perused that document. As

14 14 per the said document the deceased passed diploma in Civil Engineering from Ananda Marga Polytechnic, Karnataka in the year Which revealed that the deceased obtained Diploma in Civil Engineering in the year 2009 but no experience certificate is produced. That is why it is opined that he did not acquire any experience. As such in view of Ext. 15 the deceased can not be placed in the position of Civil Engineer or Junior Engineer (Civil) with Salary of Rs 18,000 per month. 34. Anyhow, this is a claim case. Liberal approach is adopted in respect of standard of proof of facts. In this case the base document is not accepted for the reasons stated in the above paragraphs. But except the documents exhibited on behalf of the ABCI Infrastructures Pvt. Ltd. I have taken in to consideration the facts that the deceased was working under the ABCI Infrastructures Pvt. Ltd. at the time of accident and his death. His position in the company has been determined according to his educational qualification and experience as Diploma Engineer Trainee scheduled in the category No.10 in the Compensation Structure for Diploma Engineer Employee mentioned in the HR Manual. So his Salary range was Rs 96,000 per Annum in view of column No.6 of Ext.15. I have taken his above position in the ABCI Infrastructures Pvt. Ltd. because his status as employee in that company has not been ruled out by the contesting OPs. 35. Hence in this case though the deceased worked less than one month but his annual salary at the time of his death is determined as Rs.96000/- on the reasoning that if he would survive and continue his profession his salary would not be

15 15 reduced less than Rs per annum. It is the established principle of law that annual income of the deceased is calculated on the basis of monthly income and monthly income is to be picked up from the income earned by the deceased on the date of his death. In the instant case on the date of his death his monthly income has been determined 1/12 of annual income of Rs It does not matter that whether he completed his one year service or not to get his annual income. The Tribunal is to determine the fact as what is the monthly/annual income of the deceased at the time of his death for the sake of assessing compensation on fatal accident. His annual income was Rs and after deduction of 50% for his personal and living expenditure the annual loss of dependency is found Rs The said amount is to be multiplied by the multiplier number 14 to assess the amount of compensation on fatal accident. Thus on calculation I find of Rs. 6,72, In addition the claimants are entitled funeral expenditure of Rs.25000,loss of estate of Rs.5000 and compensation on loss of future prospect as below. 37. The deceased died at the age of 25 years. That is why as per the guiding principle laid down in Sarla Verma (supra) and Rajesh and others vs Rajbir Singh and others (2013) 9 SCC 54 the claimants are entitled to 50% of future prospect. In this case the learned advocate of the Insurance Company argued that the guiding principle of Rajesh's case (supra) is not applicable in respect of future prospect rather future prospect to be 30% in view of the subsequent decision of the Supreme Court in Smti Savita vs Brindar Singh and Others, Civil Appeal No of 2014 [Arising out of SLP [C] No /2013]. But after going through the judgment of aforesaid case I have understood that the Supreme Court awarded 30% future prospect to income of deceased who has been earning livelihood from unorganized sectors in which notional income was taken into consideration to assess compensation. But in the instant case the deceased was earning from an organized sector.

16 The relevant Paragraphs of the judgment of the Savita Devi's Case have been reproduced below:- 5. This Court in Santosh Devi (supra), held as follows: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. 15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." 6. After considering the decisions of this Court in Santosh Devi (supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependents should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation. 7. In the instant case, it appears that the Tribunal and the High Court have also failed to consider the fact-situation of this case, without taking any pragmatic view and further without considering the price-index prevailing at the moment, assessed the compensation ignoring the principle laid down by this Court in the recent decisions (see: Rajesh v. Rajbir Singh (supra) as also Santosh Devi (supra)) and without revisiting the present situation, came to the conclusion and awarded the total compensation for a sum of [pic]4,28,000/-. In our opinion, such award suffers from proper assessment of compensation awarded by the Tribunal, and High Court on the conventional heads, i.e., 'loss of consortium' to the spouse, 'future prospects of the deceased' and further the sum awarded under

17 17 the head 'funeral expenses', cannot be said to be a just compensation. In our opinion, there should have been an endeavor on the part of the Tribunal as well as the High Court to consider the inflation factor and further they should have considered the amounts fixed by the court several decades ago on such heads. Accordingly, as has been pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that the compensation under the head 'loss of consortium' to the spouse, loss of love, care and guidance to children and funeral expenses amounts should have been awarded under such heads, that is, for [pic]1,00,000/- and [pic]25,000/- respectively and we award such compensation under the said heads. So far as the head of 'salary' is concerned, we do not express any opinion since we have found that the appellant could not prove the salary certificate and for such reason, we do not intend to interfere with the opinion expressed by the Tribunal on the established principle of notional income and accordingly, we do not want to disturb the said notional income while calculating the total compensation in favour of the appellant. 8. We have failed to understand why the Tribunal as well as the High Court lost its sight to hold that the victim could have had future prospects with regard to the amounts the victim used to earn during his life-time? Therefore, the notional income also needs to be increased by at least 30% and thereby the claimant is entitled to get the benefit of [pic]900/- being the future prospects; the said amount should be added to the notional income of the victim. Therefore, it appears that the total salary along with future prospects of the victim should have been calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per month. The total deduction on personal expenses, in our opinion, should have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore, salary after deduction would come to [pic] 2,600/- and the multiplier should be applied at 17, as has been done correctly by the Tribunal after taking into account the age of the victim. In this process, the total amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting to [pic]5,30,400/ Therefore applying guiding principle of the Supreme Court in Sarla Verma's case as well as Rajesh's case 50% of income of the deceased has been taken in to consideration as future prospect because the deceased was in the age group of below 40 years. Thus the additional amount of Rs.3,36,000 is calculated as 50% future prospect from the amount of compensation on fatal accident. 40. The claimant also deposed that the deceased was hospitalized and thereafter referred to higher center but they could not shift the deceased because he died on 11/12/2010. Thus the deceased was under treatment for 5(five) days. However, the claimant (PW 1) deposed that Rs 1,15,000 spent for treatment. In support exhibited case memos vide Ext.8 series. The said facts of treatment as well as genuineness of Ext.8 series are remained unrebutted in the evidence on record. That is why I have taken into consideration the aforesaid cash memos and calculated the amount of Rs Therefore (6,72, ,36, ) Rs.10,39,541 (Rupees Ten Lakh Thirty Nine Thousand Five Hundred Forty One) only has been awarded as total compensation to the claimants.

18 In the instant case the learned Advocate of the claimants stated that both the Insurance Companies are jointly and severely liable to pay compensation on the reasoning that the accident was occurred due to composite negligence of the Truck as well as Maruti Van. Contributory negligence is when the claimant himself has been negligent and has contributed to the occurrence of accident. Contributory negligence means the victim himself has contribution and therefore, his compensation gets reduced in proportion to his fault. Thus if the victim is equally negligent and has contributed to the accident in equal measure he would get only half of the compensation. On the other hand composite negligence means where the accident occurs due to negligence of 2 or more person but not the victim. 43. In case of composite negligence both the tort-features are jointly and severally liable to pay compensation with proportionate apportionment but it is the liberty of the claimant to realize the amount of compensation from any one of the wrong-doer or from the both. 44. In Andra Pradesh Road Transport Corporation vs. K. Hemlatha, AIR 2008 SC 2851 the apex court has held as under: 13. 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 compensation is payable in respect of composite negligence of the drivers of those vehicles. 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. In such a case the injured need not establish the extent of responsibility of each wrongdoer nor it is necessary for the court to determine the extent of liability of each wrongdoer. 45. Very recently the Supreme Court in Pawan Kumar and Another vs. Harikishan Das Mohan Lal and Other, 2014(3) SCC 590 relying on

19 19 the principle laid down in the case of Andhra Pradesh Road Transport Corporation vs. K.Hemlatha, AIR 2008 SC 2851, and Anthony vs. Karvarnan and Others, (2008) 3 SCC 748 observed that: 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. We, accordingly, hold that the drivers/owners of both the vehicle are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them To prove the contributory negligence, there must be cogent evidence. In the absence of any cogent evidence to prove the plea of contributory negligence, no fault can be established. This is the opinion of the Supreme Court in Meera Devi and Another vs. H.R.T.C. And Others, MANU/SC/0192/2014.

20 In the instant case the defence plea has been taken by the Insurance Company for which it is the burden of the National Insurance Company to bring some convincing material before this Tribunal to conclude the fact that the Truck was wrongly parked on the road without using parking light and without taking other precautions. But nothing revealed from the evidence on record. I have gone through the FIR, Charge Sheet and other Police papers. Nothing has been mentioned as how the Truck was parked or whether the Truck was parked wrongly. That is why, only on presumption, the owner of the Truck can not be held liable. Rather if I go through the contents of the Charge Sheet vide Ext10 it can be reflected from the fact mentioned in the Charge sheet that driver of the Maruti van lost control and dashed the backside of the stationary Truck. The said Charge Sheet has been exhibited by the claimant and which remained unchallenged on the evidence on record. In composite negligence though the Tribunal may ascertain the percentage of contribution of negligence between the two or more negligent parties but all the tort-features have to be held jointly and severally liable. The claimant can claim the entire compensation from all or any one of them. In this regard reference may be made to judgments of the Supreme Court in New India Assurance Company Limited vs. Yadu Sambhaji More, (2011) 2 SCC In the instant case the deceased was the occupant of the Maruti van which was driven by the driver in a rash and negligent manner. There is no evidence on record to show that the deceased disturbed the driver to drive the vehicle in proper manner. So question of contributory negligence on the part of the deceased does not arise. So far as composite negligence is concerned I opined that the driver of the Truck was not negligent for wrong parking for the reasons discussed herein above in the judgment. Thus the entire liability is to be borne by the Insurance Company of the Maruti van. The National Insurance Company is liable because the defence plea of carrying gratuitous passengers by the Maruti van is not established. Not only that, but this Tribunal is of opinion that the Insurance Policy covered the risk of the occupants of the vehicle on

21 21 the date of accident because nothing found in the evidence on record to opine otherwise. 49. The Insurer of the Maruti van i.e., National Insurance Company is solely liable to pay the aforesaid compensation with up to date interest. Therefore National Insurance Co is directed to deposit the aforesaid awarded amount of compensation of Rs. Rs.10,39,541 (Rupees Ten Lakh Thirty Nine Thousand Five Hundred Forty One) only within 30 days from today along with up to date interest at the rate of 9% per annum with effect from the date of filing of the claim application till realization of the full. 50. Supply free certified copy of judgment to the parties immediately. With the above award and direction the case is disposed of on contest. Given under my hand and Seal of the Claims Tribunal on this the 12 th day of August, (Shri B. Debnath) Member, Motor Accident Claims Tribunal Silchar:: Assam. Dictated and corrected by me: (Shri B. Debnath) Member, Motor Accident Claims Tribunal Silchar::Assam Transcribed and typed by me: (Dhruba Jyoti Das) Stenographer Motor Accident Claims Tribunal Silchar::Assam