- (1.) The appeal is for enhancement of compensation at the instance of the legal representatives of a deceased employee of private company aged 45 years. The deceased was travelling in a goods vehicle hired by the company along with the goods in Canter truck bearing No. MP-09-JE-0493. The accident had taken place when the vehicle going ahead of the Canter truck stopped suddenly and the driver of the Canter truck dashed against the vehicle going ahead of him. The Tribunal found that the accident could not have taken place if the Canter truck had applied caution in maintaining appropriate distance. The tribunal found that the accident was the result of a contributory negligence and after determining the compensation, made a partial abatement of the claim by 50% and awarded Rs. 3,36,000/-. In so assessing the compensation, the Tribunal took the income at Rs. 6,000/- per month, adopted a multiplier of 14 after deducting 1/3rd towards personal expenses. The judgment suffers from a fundamental error in failing to understand the difference between composite negligence and contributory negligence. In a case where the deceased was himself a tort feasor, there could be a case of contributory negligence. If the deceased himself did not contribute to the accident but was a passenger in a Canter truck then, even the negligence of the driver of the vehicle in which the deceased was travelling cannot be tacked to a passenger. In such a situation, the principle applicable is composite negligence of two vehicles in which the deceased had no more part than the unfortunate situation of the being a passenger in one of the vehicles. The distinction between composite negligence and contributory negligence has been brought through the several decisions and in particular, the point has been explained in TO Anthony v. Karvarnan, 2008 3 SCC 748. This Court has also occasion to deal with this point in the judgments of the Division Bench in Oriental Insurance Company v. Parveen Juneja, 2002 1 RCR(Civ) 18 and State of Haryana v. Amandeep Singh, 2001 2 RCR(Civ) 1and still later a Single Judge in Oriental Insurance Company v. Monika, 2008 3 RCR(Civ) 693.
(2.) If it is a case of composite negligence, the claimants had option to implead both the vehicles or anyone of them. In this case, the claimants have filed the claim only against the owner and insurer of the vehicle going ahead of the Canter truck in which the deceased was travelling. In a situation where the Court found that yet another vehicle was involved, the Tribunal itself could have impleaded the other offending vehicle as a party. It should have been also possible for anyone of the respondents to seek the impleadment of the other vehicle in which the deceased was travelling. This is only to state the obvious for the Canter truck owner and driver cannot be bound by a decision which is rendered in their absence but I am prepared to take the finding entered by the Tribunal as valid at least for the purpose of determining the issue of liability of the insurer. The Tribunal, however, committed a mistake and failing to recognize the distinction between the concepts of contributory negligence and composite negligence and, therefore, the only modification regarding liability shall be that the entire amount of what is found payable to the estate of deceased shall be payable by the insurer with a right, if so advised to institute an independent civil suit for claiming apportionment to the extent of culpability brought through an appropriate adjudication.
(3.) On the question of quantum before the Tribunal, the evidence was a letter of appointment issued in December, 2006 by the company to the deceased stating that he was employed for Rs. 10,000/- per month with Rs. 5,000/- towards allowances. The bank passbook filed showed a credit entry of merely Rs. 3,000/- and apart from a certificate issued subsequent to the death that Rs. 15,000/- was paid by the company to his wife as alleged salary, there was no proof of actual payment @ Rs. 15,000/- from December 2006 to June 2007 when the accident took place. The Tribunal did not believe the evidence given on the side of the claimants and took the income to be only Rs. 6,000/-. I would affirm the said finding in the absence of the best evidence which ought to have been provided that he was paid Rs. 15,000/- salary. The learned counsel states, however, that in terms of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, 2009 6 SCC 121 and later explained through the decision in Santosh Devi v. National Insurance Company, 2012 6 SCC 421 the Tribunal or Court shall provide appropriate enhancement for prospective increase in salary in a settled employment. The deceased was said to be working in private company and he was a graduate. There was evidence of a co-employee of the employer that the deceased was working in their company. The learned counsel appearing on behalf of the insurance company would stoutly deny that the deceased was employed and that he was joined Rs. 15,000/- per month salary. The evidence was of co-employee that he was working in a company especially when a letter of appointment was also produced before the Court that bears the company's letterhead, I would, therefore, assume that since he was only 45 years of age, there was sure prospect of increase in the manner contemplated by the decision of the Supreme Court in Santosh Devi's case . I would provide 30% increase and take the average income to be Rs. 7,800/-. I would provide for a deduction of l/3rd for personal expenses and take monthly contribution at Rs. 5,200/-. Applying a multiplier of 14, I would find the total loss of dependency at Rs. 8,73,600/-. The Tribunal has provided Rs. 5,000/- for loss to estate and like sum for funeral expenses, I will retain the same. The Tribunal has also provided Rs. 5,000/- towards loss of consortium, I will add another Rs. 5,000/- for love and affection of a minor daughter as well.;