BY- ISHA TRIPATHI
BACKGROUND (Accident Bombay HC Negligence)
- On April 27, 1990, deceased Savita and her mother were traveling from Bombay to Kolhapur by the Maharashtra State Road Transport Corporation (MSRTC) bus. The said bus dashed against an oncoming tractor trolly bearing at Khodashi, Kolhapur.
- Savita and her mother died as the result of injuries sustained in the Accident. The appellants who were the father of deceased Savita and her two siblings filed a case which is being dealt by Bombay HC that the Accident was caused solely due to rash and Negligence driving by the driver of the bus. Thus, the appellants filed an application under Section 166 of the Motor Vehicles Act claiming total compensation of Rs.1,00,000.
- MSRTC did not dispute the facts of the accident. However, they denied that the accident was caused due to rash and negligent driving of the driver of the ST bus and said that accident was caused due to the negligence of the driver of the tractor trolly. In the alternative, the respondent Corporation raised the plea of composite negligence and stated that the liability, if any, should be apportioned accordingly.
- Finally, the Tribunal recorded a finding that it was a case of contributory negligence and hence directed MSRTC to pay Rs.38, 550 is 75% of the total compensation with further direction and the rest of the balance i.e. 25% was to be compensated by the insurer of the tractor trolly with proportionate interest thereon.
CURRENT ISSUE (Accident Bombay HC Negligence)
Advocate Kritika Pokale appeared on behalf of the appellants. She argued that the tribunal has not awarded any compensation towards future prospects. She further submitted that the appellant no.1 being the father of the deceased is also entitled to compensation for loss of filial consortium i.e. the right of the parents to compensation in the case of accidental death of a child.
On the other hand, GS Hegde who appeared for MSRTC submitted that in a connected appeal foe Accident, that another single bench of the Bombay HC has held that it was a clear case of composite Negligence. This Court has further observed that the appellant-claimant is entitled to recover the entire compensation from the owner or insurer of any of the offending vehicles and that there was no necessity to divide the liability of the joint tortfeasor i.e. the wrongdoer.
Bombay HC has given liberty to the Corporation to recover 25% from the owners or insurer of the tractor trolly involved in the accident, similar liberty can be given in this case Hegde said.
The court observed that, after considering the evidence on record, the high court recorded a finding that the deceased had not contributed to the accident in any manner and it could never be a case of contributory negligence. It has been held that when the accident is caused due to negligence of joint tortfeasors, it is a case of composite negligence and not contributory negligence.
Moreover, the Court noted how the Tribunal had awarded a lumpsum compensation of Rs.25,000 without considering the fact that the deceased, though a student had the potential to earn income.
Thus, after adding the potential income of the deceased, filial consortium that the deceased’s father was entitled to and other expenses, Court determined the just compensation to be Rs.2,29,300 and noted that the appellants were entitled to recover the total compensation from MSRTC and gave the Corporation liberty to recover 25% from the owner of a tractor trolly.