Allowed

Deevi Leela Kaushalya and Ors. v. Sita Venkateshwar Reddy S/O. Nagi Reddy and Anr.

Bombay HC3 May 2024FA/335/2024

Case brief

AI extract

What is this about?

The High Court allowed the appeal, holding that the Tribunal erred in deducting 20% for contributory negligence as the deceased was a passenger in a case of composite negligence. The court directed the insurance company to pay the withheld amount with 6% interest.

What did the court decide?

Claimants entitled to an additional amount of Rs.13,31,858/- with 6% p.a. interest; Insurance Company to deposit within eight weeks.

Deevi Leela Kaushalya and Ors. vs Sita Venkateshwar Reddy S/O. Nagi… — Insurance | Bombay HC (2024)

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18-FA-335-2024.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.335 OF 2024

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Deevi Leela Kaushalya } W/o Deevi Venkata Anantha Saina } Ayyangar, Age-41 years Occ: Housewife }

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Deevi Sreenila } D/o. Deevi Venkata Anantha Saina } Ayyangar, Age-16 years, Occ: Education }

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NILAM Digitally signed byNILAM SANTOSH SANTOSH KAMBLE KAMBLE Date: 2024.07.2614:04:56 +0530

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Versus

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Sila Venkateshwar Reddy S/o. Nagi } Reddy } Age-Adult, Occ: Business, } R/at H.No.15/1418, C.B. Road, Tadipatri, } Ananthapur, Andhra Pradesh-515 411. }

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N.S. Kamble page 1 of 8

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18-FA-335-2024.doc

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Royal Sundaram General Insurance Co. } Ltd. } Office No.4546, Ground Floor, Sunderam } Towers, Whites Road, Royyapettah, } Chennai-600 014. } ….Respondents

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Mr.Yogesh Pande, for the Appellants. Mr.Nikhil Mehta i/b KMC Legal Venture, for Respondent No.2.

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CORAM : ARUN R. PEDNEKER, J.

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DATE : 23^rd JULY 2024

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ORAL JUDGMENT :-

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. Heard learned counsel for the parties.

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The present Appeal filed by the Claimants on the ground of error in computation of the compensation by the MACP, Tribunal. The Appellant submits that the Tribunal has erroneously deducted 20% from the compensation amount on account of contributory negligence. The learned counsel appearing for the Claimant’s submits that in the instance case the computation is calculated at paragraph No.26 in Judgment of the

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Tribunal as under:-

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MonthlySalary			Rs.48,000/-
Annual Income		Rs.48,000/- x 12	Rs.5,76,000/-
Deductions	towards	Rs.5,76,000/- -	Rs.5,25,388/-
Professional Tax and Tax	Income	Rs.50,612/-

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N.S. Kamble page 2 of 8

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18-FA-335-2024.doc

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Age of deceased is 48 years, therefore, multiplier of 13	Rs.5,25,388/- x 13	Rs.68,30,044/-
1/4th Deduction towards personal & living expenses	Rs.68,30,044/- - Rs.17,07,511/-	Rs.51,22,533/-
Add 30% towards future prospectus	Rs.51,22,533/- + Rs.15,36,759/-	Rs.66,59,292/-
20% deductions towards contributorynegligence	Rs.66,59,292/- – Rs.13,31,858/-	Rs.53,27,434/-
Add : Consortium @ Rs.44,000/- x 3	Rs.53,27,434,/- + Rs1,32,000/-	Rs.54,59,434/-
Loss of Estate @ Rs.16,500/- x 3	Rs.54,59,434/- + Rs.49,500/-	Rs.55,08,934/-
Funeral Charges @	Rs.55,08,934/- +	Rs.55,25,434/-
Rs.16,500/-	Rs.16,500/-
Total Compensation		Rs.55,25,434/-

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To appreciate the issue, it is necessary to note the brief relevant facts:-

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On 14^th October 2016 at about 9.15 p.m. the deceased Deevi Venkata Anantha Saina Ayyangar was travelling in Mahindra Verito Car bearing No.AP-07-BV-1277 by B.V. Peta to Thaticherlamotu State Highway. Velagapudi Ramesh was the owner of the said car. The driver Kokkiligadda Narasimha Rao was driving the said car with moderate speed by the left side of the road by observing all the traffic rules. When the said car reached near the Ondutla village bus stop, at the same time, one lorry bearing registration No.AP-02/TB-7209 came while over

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N.S. Kamble page 3 of 8

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18-FA-335-2024.doc

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taking from opposite side with high and excessive speed and the lorry driver lost the control and dashed the car in which the deceased and his friends were travelling. As a result the car was dragged 6 meters on the State Highway road. Hence, all the occupants in the car including driver and Ayyangar died on the spot in the said accident.

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At the relevant time of accident Ayyangar was 48 years of the age. At the time of the accident he was working as the Finance Manger in the Inox Auto Parts Pvt. Ltd., Pune. On the demise of Ayyangar his widow, mother and two children filed the Claim Petition before MACT claiming compensation. At the relevant time of accident deceased was earning Rs.48,000/-.

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On consideration of the material before the Court, the Court held that the trolley, so also the car was partly negligent in the accident. It has attributed the 80% negligence to the trolley and 20% to the car and computed final compensation payable to the Claimant’s.

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The issue raised in the present Appeal is limited to the 20% deduction made from the compensation towards

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N.S. Kamble page 4 of 8

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18-FA-335-2024.doc

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contributory negligence. The learned counsel submits that the deceased was the occupant of the car and not driving the car. As such it is a case of composite negligence and not of contributory negligence and that the Claimants are entitled for claim compensation from either of the joint tortfeasors and no deduction of 20% can be made for contributory negligence as the deceased was not driving the car which was partly responsible for the accident.

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The submission made by the learned counsel for the Appellant Mr.Yogesh Pande is accepted as its well settled proposition of law that the Claimant can seek compensation from either of the joint tortfeasors and need not claim compensation from all the tortfeasors to the extent of their negligence. The Hob’ble Supreme Court in the case of Khenyei V/s. New India Assurance Co. Ltd. & Ors.¹ has discussed the liability of joint tortfeasors and has held as under :-

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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

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1 Civil Appeal No.4244 of 2015 arising out of SLP © No.14015 of 2010 decided on 7^th May 2015

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N.S. Kamble page 5 of 8

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18-FA-335-2024.doc

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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.

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What emerges from the aforesaid discussion is as follows :

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(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.

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(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.

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(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

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N.S. Kamble page 6 of 8

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18-FA-335-2024.doc

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court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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(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.

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In view of the law laid down in the case of Khenyei (Supra) deduction of Rs.13,31,858/- by the Tribunal towards contributory negligence is erroneous and thus the same will have to be added to the final computation of Rs.55,25,434/-.

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Thus, the Claimant’s would be entitled a further amount of Rs.13,31,858/- along with 6% interest per annum. The Tribunal has directed interest @ 7% per annum, however, the Claimant’s, on instructions, has accepted the interest rate of 6% per annum on the enhanced amount of Rs.13,31,858/-. The Insurance Company to deposit the enhanced amount within eight weeks after uploading of this order. The Tribunal to disburse the same in accordance with law.

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The Insurance Company is at liberty to take

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N.S. Kamble page 7 of 8

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18-FA-335-2024.doc

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appropriate steps to recover the amount of Rs.13,31,858/- along with interest, from the joint tortfeasors by instituting independent proceedings.

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The Appeal is allowed and disposed of in aforesaid

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terms.

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All pending Interim and Civil Applications are disposed of.

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(ARUN R. PEDNEKER, J.)

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N.S. Kamble page 8 of 8

Deevi Leela Kaushalya and Ors. v. Sita Venkateshwar Reddy S/O. Nagi Reddy and Anr.

Case brief

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Deevi Leela Kaushalya and Ors. v. Sita Venkateshwar Reddy S/O. Nagi Reddy and Anr.

Case brief

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