Angoori Devi & Others. v. Megh Raj & Others

H.A Khan, J.— Two trucks-nos. DLG-9471 and HRG 8750 were involved in an accident on 16.6.1973 One Lekh Raj Singh, 30, a class IV employee in NCERT, boarding in truck No. HRG-8750 was killed in the process. Appellants, (his LRs) filed claim suit No. 25/1979 claiming compensation of Rs. 1.20 lacs. But MACT awarded only Rs. 43,200/- compensation to them with 6% interest vide award dated 19.1.1980 after determining dependency of the deceased at Rs. 250/- per month and applying a multiplier of 16 to it. The Tribunal also found it to be a case of composite negligence and apportioned liability of respondents 1-3 jointly and severally at 75% and that of respondent 4 and 5 at 25%. No liability was fastened on respondent No. 6 (the Insurer of truck No. HRG 8750) for being untraceable perhaps.

2. Respondent No. 3 (Insurer) of other truck No. DLG 9471 took (FAO 234/1980) against this award on various grounds and appellants (claimants) also filed cross-objections in this. The Insurer's appeal was dismissed by judgment dated 2.3.1987, but appellant's cross-objections were allowed enhancing compensation to Rs. 90,000/- with 9% interest, of this (Rs. 67,500/- with interest) 75% of the liability fixed on respondents 1-3 was made payable by insurer-(respondent No. 3).

3. Appellants still feel dissatisfied and have filed this appeal claimants compensation of Rs. 4 lacs or so. For this they have also filed CM. 1454/2000 under Order 41 Rule 33 read with Section 151 CPC for consideration of a document dated 16.5.2000 containing salary details of the deceased which he would have earned till his superannuation on 12.1.2003 Based on this, it is claimed that deceased would have drawn a basic monthly salary of Rs. 3440 and alongwith allowances would have earned a gross income of Rs. 5673/- per month. Reliance in this regard in placed on Supreme Court judgment in Manjushri Raha, 1977 ACJ 134, and a judgment of this court in Satyawati Pathak in Heri Ram, 1993 AC 424, to urge that future prospect of increased earnings of the deceased was liable to be taken in account for assessing his gross income.

4. Appellant's further case is that both MACT and First Appellate Court had fallen in error by apportioning the liability of 75% on respondents 1-3 and 25% on respondents No. 4 and 5 when no such apportionment Was permissible in the case of composite negligence which now after 28 years or so. Nor could the judgments impugned be faulted on this count because neither court had any such material before it.

5. It is not the right of a party to lead additional evidence at his choice and convenience. He has to follow the rules of the game which regulate it test it becomes an unending process. These are embodied in Order 13 Rule 2 in case of a suit and Order 41 Rule 27 for appeal. Both provisions lay down requirements and conditions for this and it is for the party to satisfy the same. If he fails the court would not be competent to call for fresh evidence. One of the foremost conditions to be satisfied is that he could not adduce the requisite evidence despite best efforts and due diligence. Moreover, the party affected by it should have an opportunity to rebut it.

6. None of these conditions exist in the case in hand. It is not appellant's case that future salary details of the deceased were beyond their reach and knowledge and could not be procured by them despite their all out efforts and exercise of due diligence during trial before MACT or First Appellate Court. In fact they had not indicated any worthwhile reason for their eviction. It is, therefore, apparent that they had taken it easy and hadnow woken up after decades on a second thought. Their application is also evasive and in generalised terms and offers no justification for the belated action.

7. Moreover, it is not for this court in this LPA to allow appellants additional evidence to enable them to supplement their factual data. Such an indulgence if shown involved the liability of these respondents jointly and severally. The grievance is also made of low rate of 9% interest granted by First Appellate Court and support for all this drawn from judgments of various High Court in 1968 ACT I (MP), Munjula Devi v. Munju Suri Reha, 1984 ACT 99 (Allahabad), Kundan Bala Vora v. State Of U P, 1989 ACJ 833 9 (Kerala), K. Veunni & others v. Prem Latha and 1986 ACT 561 (Karnataka), Rama Bai v. Mukande and for rate of interest on 1991 ACJ 3.

8. Dealing with first things first, it is too late in the day for appellant to press C.M No. 1454/2000 containing prospective salary details of the deceased into service at this stage after decades. There is no quarrel with the proposition that future advancement of life and earning of the deceased were liable to be taken in regard while determining his/her gross income but it depended upon some proof adduced at the relevant time. This position stands concluded by the Supreme Court judgment in Susamma Thomas case, 1094 ACT 1 and followed by us lately in LPA No. 21/1989 (titled Veena Rani & Others… v. Dtc & Others…) decided on 5.2.2001 Where no such proof was forthcoming and no supportive evidence was placed on record, there was no occasion for the Tribunal to anticipate a future income of the deceased on hypothesis to determine his/her gross income.

9. In the present case appellants had admittedly failed to produce any evidence to indicate future expected salary of the deceased before Tribunal and even before First Appellate Court. They could not be allowed to do so would open a Pandora's box and would result in reopening of age old claims. Apart from this, we find that First Appellate Court had raised the multiplier from 16 to 30 to cater to future increase in earnings of the deceased due to Third Pay Commission revision etc. Therefore, this is not a case where this aspect had gone unattended altogether. For all this, we find no merit in appellants application which is rejected.

10. Now all that remained to be seen was whether Tribunal and First Appellate Court had committed any error by apportioning the liability between two sets of tort feasors and whether rate of interest required to be increased from 9%.

11. In Law of Torts “contributory negligence” and “composite negligence” are regarded as two different and distinct concepts. The first postulates an act or omission on the part of a claimant which is also found to contribute materially to damage or loss.

12. As against this, “composite negligence is understood to represent a situation where loss or damage is caused to a person because of the combined negligence of two other persons and in which there is no negligence on his part. The claimant in this does not contribute in accident which results in death or injury and it is tort feasors who become jointly and severally liable for the loss and damages. A claimant could sue them jointly and severally but where he sues them jointly, each tort feasor becomes liable to pay for the loss and damages and in that case he may recover it from any one of them or from all.

13. It is in this context word “apportionment” has come to be attached and related to the case of contributory negligence. This has led to “apportionment” being understood as a division of liability between claimant(s) and the tort feasors and reduction of loss damages proportionate to claimants responsibility for the accident and on this premise it is made out that there could be no “apportionment” in case of a “composite” negligence wherein liability was joint and several. This is how the issue has been dealt with in the judgments of various High Courts relied upon by L/C for appellant and mentioned hereinabove. It would be a repeat exercise to quote from these judgments which by and large reiterate that where these was no contributory negligence on the part of an accident victim, the question of apportionment would not arise.

14. We would have also fallen in line but for the provisions of Section 110-B of the Old M.V Act and Section 168 of the New Act, which empower the Tribunal not only to determine the amount of compensation payable but also to specify the amount which is payable by the insurer, or owner or driver or by all or anyone of them. The relevant provision is reproduced hereunder and reads thus:—

“Section 168. AWARD OF THE CLAIMS TRIBUNAL.

On receipt of an application for compensation made under Section 166, (he Claims Tribunal shall after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be”

15. A plain reading of this provision leaves no scope for doubt that it extends the jurisdiction of Tribunal to awarding compensation amount against all or some of the tort feasors or even one. Where Tribunal finds that there are two vehicles involved in the accident and their drivers are found negligent, it is under a statutory mandate to specify and apportion the amount proportionate to the responsibility of the owner and driver of one vehicle and that of the other. If both vehicles are insured, then it would have to specify the amount payable by each, be that called apportionment or whatever. It could as well as be that one vehicle was insured and the other not insured. It would still have to undertaken the exercise of specifying the amount payable by the Insurer of one vehicle and the owner of the other as the case may be.

16. All this appears to be a much do about nothing because Tribunal by doing so only specifies inter se-liability of owners/drivers of two vehicles found negligent to cause accident and it does not effect the claimant/s anyway, be it a case of composite negligence because he/she is entitled in law to recover the entire compensation amount from all or anyone of the trot feasors jointly and severally. There is no problem where both sets of tort feasors would satisfy the award. But if one of them failed, claimant would be within his/her right's to recover the whole amount from the other. It would be then for that party to claim rateable distribution from the defaulting one.

17. We find support for this from judgments of other High Courts also. In Maharashtra State Road Transport Corporation v. Ramchandra Ganpatrao Chincholkar & others, 1993 ACJ 165, Bombay High Court observed as under:—

“(12-A) This was a case of composite negligence of both the drivers. Their liability was, therefore, undoubtedly joint and several. A grievance is made on behalf of the appellants that the liabilities ought to have been apportioned. In such cases, only inter se liabilities of the two vehicles can be apportioned and in our view, the Tribunal ought to have undertaken that exercise in the interest of finality and to avoid multiplicity of proceedings. Section 110-B of the Motor Vehicles Act mandates the Tribunal not only to determine the amount of compensation but also to specify the amount payable by the insurer or the owner, or the driver of the vehicle involved in the accident or by all or any of them.”

18. This position was reiterated by Orissa High Court in 1995 ACJ 189-New India Assurance Co. v. Ashok Kumar as under:—

“It is clear that while awarding the amount in Case of composite negligence, the Tribunal can direct and payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay the amounts to the claimant in proportion as awarded by the Tribunal, there is no problem for the claimant. But if one of the parties liable does not want to honour the award of the Tribunal, it will be open to the claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other.”

19. This view was also followed by Punjab & Haryana High Court in 1996 ACJ 756 and 1999 ACJ 1262.

20. We accordingly hold that apportionment of liability was not a taboo and was permissible even in a case of composite negligence and Tribunal was competent to apportion and specify liability of two sets of tort feasors though it was open to claimant/s to recover the whole compensation amount from one of them where the other one defaulted.

21. Applying this to the present case, appellants would be within their rights to execute the award against respondents 1-3 and respondents 4-5 and in case of default by respondents 4-5 to recover the whole amount from respondents 1-3 who in turn would have a right to claim it from respondents 4 & 5.

22. Appellant's plea for higher rate of interest does not merit acceptance because 9% p.a was the prevalent rate at relevant time.

Appeal is disposed off accordingly.