Guddi Devi and ors. Vs. Madhya Pradesh State Road Transport Corporation and ors. - Court Judgment

S. Samvatsar, J.

1. This order shall govern the disposal of both these appeals as they arise out of common award dated 5.7.2000 passed by the Eighth Additional Member Judge, Motor Accidents Claims Tribunal, Gwalior in Claim Case Nos. 159 and 160 of 1996. In Claim Case No. 159 of 1996 the Claims Tribunal has awarded compensation to the tune of Rs. 2,98,000 for the death of deceased Kalyan Singh, while in Claim Case No. 160 of 1996 compensation to the tune of Rs. 52,000 is awarded for the death of the deceased who was a boy of 9 years.

2. The brief facts of the case are that on 18.1.1996 the deceased persons were travelling in bus No. MP 07-F 0015 which was driven by deceased Dashrath Singh. The bus was owned by respondent No. 1. Said bus dashed against truck No. DL 1G-B 0261 which was owned by respondent No. 3 and was insured with respondent No. 4. Deceased persons who were travelling in the bus sustained injuries in the said accident due to which they died.

3. Appellants in M.A. No. 679 of 2000 are the wife, children and father of the deceased while in M.A. No. 676 of 2000 the appellants-claimants are the parents of the deceased.

4. The Claims Tribunal found that the accident has taken place due to rashness and negligence of both the vehicles and awarded compensation as indicated herein above with a direction to the owners and insurer of both the vehicles to apportion the liability to the extent of 50 per cent each. This award is under challenge in the present appeals.

5. Respondent M.P.S.R.T.C. has filed its cross-objections challenging the finding about negligence on the part of driver of the bus.

6. Question involved in these appeals is whether the amount of compensation awarded by the Claims Tribunal is just and proper, whether the direction of apportionment to the extent of 50 per cent is proper, whether the driver of the bus owned by respondent No. 1 was not negligent and whether the driver of the truck was solely responsible for the accident.

7. As regards question of apportionment is concerned, counsel for the appellants submitted that in case of composite negligence, orders for apportionment should not be passed. He submitted that there cannot be apportionment of liability between the two joint tortfeasors and, therefore, the claimants have right to recover the said amount from any of the joint tortfeasors. For this purpose, he referred to Division Bench decision of this Court in the case of New India Assurance Co. Ltd. v. Arun Kumar , wherein the Division Bench of this Court has held that in case of joint tortfeasors, it is difficult to determine the liability of each tortfeasor and it will not be possible to apportion the negligence of the joint tortfeasors arising out of use of motor vehicle. Award can be passed against both or any one of them for entire amount because the injured is not in a position to quantify the apportionment of each vehicle.

8. This view is based on Full Bench decision of this Court in the case of Sushila Bhadoriya v. Madhya Pradesh State Road Trans. Corporation : 2005(1)MPHT486 , in which the same principle is laid down by the Full Bench.

9. Counsel for the respondents, however, tried to distinguish the said case by arguing that in that case the driver and owner of the other vehicle were not joined as a party. He submitted that where the owner and driver of the other vehicle are joined as a party, then this principle will not be applicable. In the present case, according to him, as drivers and owners of both the vehicles are joined as party, therefore, the Claims Tribunal has rightly apportioned the liability.

10. Respondent M.P.S.R.T.C. has also preferred cross-objection in the matter on the ground that driver of the M.P.S.R.T.C. was not negligent.

11. As regards the cross-objection is concerned, the said cross-objection is inter se between the two co-defendants. Under Order 41, Rule 22, Civil Procedure Code, cross-objection by one of the defendants against other defendant is not maintainable. This view is taken by the Apex Court in the case of Mahant Dhangir v. Madan Mohan : [1988]1SCR679 . However, in that case, the Apex Court has held that even though the cross-objection is not maintainable, the court in appropriate cases can exercise powers under Order 41, Rule 33, Civil Procedure Code.

12. In the present case, we find that there is a head-on collision between the two vehicles. Counsel for respondent No. 1 relying on the statement of Rajendra Prasad Verma, AW 3, has tried to demonstrate that the driver of the bus was not negligent. The bus was going from Agra to Gwalior. When the bus reached near Maniya Police Station, the bus stopped due to some mechanical failure. Thereafter, the bus was again started and the truck which was coming from the opposite side in a high speed of 80 kmph dashed against the bus which shows that the driver of the bus was not negligent.

13. After careful perusal of the statement of this witness, we are not inclined to accept the contention of the learned Counsel for respondent No. 1 because the said witness has clearly stated that after the breakdown, the bus has again started and was moving at the time of the accident. There was head-on collision between the two vehicles. Hence, drivers of both the vehicles were equally responsible for the said accident and as has been laid down by the Full Bench of this Court in the case of Sushila Bhadoriya 2005 ACJ 831 (MP), we hold that the claimants are entitled to recover the amount of compensation from any of the joint tortfeasors.

14. As regards quantum of compensation in M.A. No. 679 of 2000 is concerned, in that case the deceased was 33 years of age at the time of the accident. He was a security guard in the M.P.S.R.T.C. and his monthly salary was Rs. 2,382. Thus, monthly dependency of the dependants will come to Rs. 1,500, i.e., after deducting 1/3rd and the annual dependency will come to Rs. 18,000. The deceased was 33 years of age at the time of accident, hence, the multiplier of 17 will be applicable. On applying the multiplier of 17, the compensation would come to Rs. 3,06,000. Apart from this amount, the claimants are also entitled to another sum of Rs. 19,000 for damages under various heads such as loss of consortium, loss to estate, funeral expenses, etc. Thus, the total compensation comes to Rs. 3,25,000 (rupees three lakh twenty-five thousand). Claimants are also entitled to interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of the appeal till realisation.

15. So far as quantum of compensation in M.A. No. 676 of 2000 is concerned, in that case, the deceased was a boy of 9 years at the time of the accident and was a non-earning member. He was studying in third standard. Claims Tribunal considering all these facts has awarded compensation to the tune of Rs. 52,000 for his death. We find that this amount is on the lower side. In case of death of a child, the minimum amount of compensation which is to be awarded by the courts is Rs. 1,50,000. Hence, the amount of compensation is enhanced from Rs. 52,000 to Rs. 1,50,000 (rupees one lakh fifty thousand). Claimants are also entitled to interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of the appeal till realisation. In the result, both the appeals succeed in part and are allowed as indicated herein above.