Bellunke A S, J. - This appeal is filed against the judgment and award dated 07.10.2017 passed by IX Addl. District and Sessions Judge and Addl. M.A.C.T., Belagavi (hereinafter referred to as the Tribunal, for short), in M.V.C. No.2038/2015.

2. Briefly stated the facts are that on 11.08.2015 at about 4.30 p.m., one Avinash Dattatray @ Datta Kokare who was the husband of claimant No.1, father of claimants No.2 and 3 and son of claimant No.4 was riding his motorcycle bearing registration No.MH-10/AV-9428 along with pillion rider. At that time, a car bearing registration No.MH-10/E-9454 driven in a rash and negligent manner and suddenly and abruptly stopped the car by applying break and as a result, rider of the motorcycle dashed to the hind portion of the car and he fell on the road. At that time, a bus belonging to MSRTC bearing registration No.MH-12/EF-6159 came in a high speed and ran over the rider of the motorcycle and he died on the spot. The claimants spent Rs.50,000/- towards funeral expenses and transportation of dead body etc. The deceased was aged 27 years. He was earning Rs.800/- per day by doing fabrication work. The entire family was depending on him. Therefore, the claimants filed claim petition seeking compensation.

3. After service of notice, all the respondents appeared and filed separate statement of objections resisting the petition.

4. Respondent No.1 contended that it is the deceased rider of the motorcycle who himself was responsible for the accident. It is further contended that Tribunal had no jurisdiction to entertain the petition as the accident took place at Sangli in Maharashtra State and prayed for dismissal of the petition.

5. Respondent No.2 contended that accident took place due to entire negligent act of the deceased rider of the motorcycle and the driver of the MSRTC bus. It is further contended that there was no negligence on the part of the driver of the car. Even then a false complaint was filed against the driver of the car. It is contended that deceased as well as driver of the car were not holding valid driving licence on the date of accident. The liability of respondent No.2, if any, is subject to the terms and conditions of the policy. Accordingly, prayed for dismissal of the petition.

6. Respondent No.3 contended that there is no jurisdiction for the Tribunal to try the case. The accident occurred on account of rash and negligent act of the motorcycle rider by following the car and suddenly the driver of the car had slowed down his vehicle and deceased had hit the car and lost balance and was thrown down from his vehicle near right hind side wheel of the bus. Therefore, the driver of the bus was not at all responsible for the accident. Accordingly, prayed for dismissal of the petition.

7. On the basis of pleadings of the parties, tribunal framed following issues:

1) "Whether the petitioners prove that on 11.08.2015 at about 04.30 p.m. on Sangli- Tasgoan Road, in front of Madhavnagar Sugar Factory, within the limits of Sanjay Nagar Police Station deceased Avinash Dattatray @ Datta Kokare sustained grievous injuries in the accident occurred due to rash or negligent driving of the vehicles bearing registration No.MH-10/E-9454 & MSRTC Bus No.MH-12/EF-6159 by its driver and later succumbed to the said injuries

2) Whether the petitioners are the dependents of deceased Avinash Dattatray @ Datta Kokare

3) Whether the petitioners are entitled to for compensation If so, what amount and from whom

4) What order"

8. After holding trial, Tribunal has awarded compensation of Rs.13,22,500/- and held that driver of the car and deceased motorcycle rider were responsible for the accident in question. Therefore, the ratio of negligence was apportioned at 40% on the rider of the motorcycle and 60% on the driver of the car. Accordingly, Tribunal awarded a sum of Rs.5,29,000/- as compensation to the claimants with 6% interest per annum. Said judgment and award has been challenged by the legal heirs of the deceased motorcycle rider on following grounds:

The Tribunal has not properly appreciated the oral and documentary evidence on record.

Tribunal wrongly came to the conclusion that the deceased was earning only Rs.7,500/- per month as against Rs.800/- per day as claimed by the claimants.

Tribunal wrongly held the contributory negligence on the motorcycle rider to the extent of 40%.

There was negligence on the part of MSRTC bus driver also and the Tribunal has not properly appreciated the same.

The interest awarded by the Tribunal is too low and the deceased are entitled for interest 9% interest per annum.

Future prospects at the rate of 50% is not awarded.

The deceased was earning Rs.800/- per day as self employed person. Therefore, the Tribunal ought to have allowed the petition in toto. Accordingly, they prayed to allow the appeal.

9. We have heard the arguments of both the counsel at length.

10. Learned counsel for the claimants has reiterated the appeal grounds in his arguments. It is vehemently contended that finding of the Tribunal that there was contributory negligence on the part of the rider is erroneous in law. The liability should have been fixed on the car driver and the bus driver who were responsible for the accident. Accordingly, learned counsel prayed for allowing the appeal.

11. Learned counsel for the respondent No.2 would submit that a bullock cart was going in front of the car. Therefore, driver of the car had applied sudden break to stop the car by giving signal, but it is the rider of the motorcycle who was driving his motorcycle in a high speed had hit the car from hind side and fell on the road and the bus belonging to MSRTC ran over the rider of the motorcycle. Therefore, driver of the bus and rider of the motorcycle are only responsible for the accident.

12. Learned counsel for the respondent No.3 would submit that absolutely there was no negligence on the part of the driver of the bus in question. The driver of the car drove the vehicle in a rash and negligent manner and suddenly applied break and as a result of which deceased fell on the road and the rear right side wheel of the bus had ran over him and therefore, there was no negligence on the part of bus driver in question. He would further submit that compensation awarded by the Tribunal is just and proper. Hence, prayed for dismissal of the appeal.

13. In the light of rival contentions, following points would arise for our consideration:

1) Whether the appellants/claimants prove that the finding of the Tribunal that there was contributory negligence on the part of the deceased rider of the motorcycle to the extent of 60% is perverse, capricious, erroneous in law and against facts and circumstances of the case and evidence on record

2) Whether the appellants/claimants prove that the compensation awarded by the Tribunal is not just and proper and they are entitled for enhancement of the same If yes, what is the quantum to which they are entitled to

3) What order

14. Re: POINT NO.1

In the accident in question three vehicles have been involved is not in dispute. The root cause for the accident is said to be abrupt stoppage of the car by its driver and on account of that, deceased rider of the motorcycle was forced to hit the rear portion of the car. As a result, he was thrown down from his vehicle and fell on the road. It is thereafter bus belonging to MSRTC coming from the opposite direction had ran over the deceased.

15. Before entering into the merits of the case, it is necessary to examine what is the position of law with regard to the composite negligence and contributory negligence. With reference to the ruling of the Honble Apex Court in the case of Karnataka State Road Transport Corporation, by its Managing Director vs. Arun @ Aravind and others, (2004) ILR(Kar) 26 (Arun @ Aravind). It is held as under:

"14. In view of the above discussion, we answer the referred question by holding that the Full Bench decision in GANESHs case does not require any reconsideration. It is seen that in an accident case, generally the Insurance Company is liable to pay compensation as per the terms of the policy. But, when the accident is on account of composite negligence of two or more vehicles, the claimant is entitled to proceed against any of the tort-feasors for full compensation for the injuries suffered or the death caused, as the liability is joint and several. The question of apportionment does not arise, if the other joint tort-feasor has not been impleaded as party. However, after ascertaining and impleading the other joint tort-feasor as a party, the tort-feasor can exercise his right of contribution in accordance with law. In other words, when the other joint tort feasor is not a party, the Tribunal should refrain from giving any finding about apportionment or negligence, in the absence of other tort feasor, to avoid any exercise in futility and leave the said question of liability of joint tort feasors to be adjudicated, if the joint tort feasor who satisfies the award is able to find out the name of the other joint tort feasor and seeks to exercise right of contribution in accordance with law.

The Honble Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors, (2015) ACJ 1441 [LQ/SC/2015/708] , (in Civil Appeal No.4244/2015 and connected matters), has been held:

(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.

(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis- -vis the Plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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

(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."

16. Keeping in mind the above position of law, we proceed to examine as to whether finding of the Tribunal that there was contributory negligence on the part of the rider of the motorcycle is sustainable in law, facts and evidence on record.

17. We have given our anxious consideration to finding recorded by the Tribunal at paragraph 12 whereunder it has accepted the version of RW-1, car driver who has admitted that he had slowed down the speed of his car since a bullock cart was going ahead and therefore, he applied the break of his car. As a result, deceased rider of the motorcycle had rammed into car from behind. Therefore, learned Judge came to the conclusion that rider of the motorcycle was also rash and negligence and had contributed to the accident by his negligence. It is relevant to note that as per the complaint filed by the pillion rider before the police as per Ex.P-1, he has clearly stated that on account of sudden application of break by the driver of the car which was proceeding in front of them, deceased rider of the motorcycle could not control his motorcycle and had dashed to the rear portion of the car. That is how the accident in question happened between these two vehicles. Matter does not end here. On account of impact, rider of the motorcycle was thrown down from his motorcycle and as a result, deceased rider of the motorcycle fell on the road at which point of time, MSRTC bus coming from opposite direction ran over the deceased. It is also important to note that a duty is cast on the bus driver to drive his vehicle carefully. He could not take shelter on the ground that deceased fell on the road on account of hitting the rear portion of the car and therefore, the rear wheel of the bus had ran over him. It is also important to note that bus driver who was coming from the opposite direction was supposed to keep sufficient distance between the car which was coming from opposite side. He had to keep his vehicle away from the car and he should have taken his vehicle to the extreme left side of the road. If he had driven the bus in said manner, rider of the motorcycle would not have died. The width of the road also matters in such circumstances. It is also found from the records that Investigating Officer who investigated the case has not drawn the sketch of the scene of occurrence which would have thrown more light in deciding who was negligent. It is a clear case where three vehicles were involved in the accident and it can be said with certainty that it is a case of composite negligence so far as the car and bus in question are concerned. To fasten the contributory negligence on the deceased it has to be proved that he was also rash or negligent in causing the accident. As per the panchanama, the width of the tar road is 24 feet and 2 feet kachcha road on both the sides of the road. Therefore, if the bus had been taken to the extreme left side of the road covering that two feet then also the fatal accident could have been avoided. Applying of the break all of a sudden without giving any signal to the vehicles coming from behind would also amount to negligence. Admittedly, accident has happened during day time. The car driver was also required to look into the mirror whether any vehicle is coming from behind before applying the break. It is not the case of any object or person or animal suddenly crossing the road so as to apply the break all of a sudden. It is also important to note that said car being Maruti Swift car and is fitted with break drum system and will be having a power break whereas the break system of a motorbike would not be powered break system. Even a slight disturbance to a motorcycle rider is likely to make him fall down. Therefore, driver of the car ought to have noticed that a motorcycle was following the car and as such he should have been very careful.

18. Now coming to the bus in question, it is a heavy vehicle having an air break system which is very powerful and makes the vehicle to come a halt in a short span of time. Therefore, caution should have been exercised by the bus driver. If he had been cautious then fatal accident in question would not have taken place. From the facts discussed above and the evidence on record, it can also be inferred that car driver must have been driving in a high speed. He could not overtake the bullock cart in front of him on account of bus coming from opposite direction. Hence, he would have applied the break suddenly, when he came to know that he cannot overtake the bullock cart on account of bus coming from opposite direction. This can also be a cause for sudden application of break. Therefore, from the evidence on record, we find that it is the drivers of car and bus who were responsible for the accident in question which resulted in death of a young man. Therefore, Tribunal fell in grave error in holding that deceased motorcycle rider had contributed to the accident to an extent of 60% exonerating the bus driver and fastening the liability only on the driver of the car to an extent of 40%. Therefore, we hold that there was composite negligence on the part of the car driver as well as the driver of the bus in question. Hence, we hold that contributory negligence on the part of the deceased has not at all been proved. To prove the case of MSRTC, the bus driver of the said bus has not been examined. Spot panchanama would clearly go to show that accident occurred on account of composite negligence of the driver of the car and the driver of the bus. Moreover, charge sheet has been filed against the driver of the car and also against the driver of the bus. RW-1 admitted in his crossexamination that as the bullock cart was going in front of his car, he had suddenly applied the break and thereby the accident in question had occurred. On the other hand, evidence on record would clearly establish that accident had occurred on account of rash and negligent act of the driver of the car and as well as the driver of the bus. RW- 2 is an official of the insurance company.

19. It is also found from Ex.P-11 that the deceased rider of the motorcycle had valid driving licence as on the date of accident. The respondent insurance company has also not proved any violation of policy conditions issued to the car. The driver of the car is more negligent in causing accident than the driver of the bus because it is he who applied sudden break and the root cause for the accident is application of sudden break. Therefore, the driver of the car is held liable for causing the accident to an extent of 70% and driver of the bus to an extent of 30%. Therefore, insurance company i.e., respondent No.2 and the owner of the bus i.e., respondent No.3 are jointly and severally liable to satisfy the award in the ratio of 70:30. Therefore, finding of the Tribunal in respect of fastening liability on the rider of the motorcycle at 60% is set aside. Accordingly, point No.1 is answered in affirmative.

RE: POINT NO.2

20. As regards quantum of compensation is concerned, what is just compensation has been laid down by the Honble Apex Court in the case of Sebastiani Lakra and others Vs. National Insurance co. Ltd. and another, 2019 ACJ 34 [LQ/SC/2018/1338] , which reads as under:

"5. Section 168 of the Motor Vehicles Act, 1988 (for short the) mandates that just compensation should be paid to the claimants. Any method of calculation of compensation which does not result in the award of just compensation would not be in accordance with the. The word just is of a very wide amplitude. The courts must interpret the word in a manner which meets the object of the act, which is to give adequate and just compensation to the dependants of the deceased. One must also remember that compensation can be paid only once and not time and again."

21. According to the claimants, deceased was doing fabrication business and was earning Rs.800/- per day. Since the claimants have not produced any documentary evidence to prove the avocation and income of the deceased, Tribunal has taken the income of the deceased at Rs.7,500/- per month notionally. The fact that deceased was doing fabrication work and he comes under the category of self-employed person. He was a young man aged 27 years and able bodied person and as such it can be presumed to have had generated income. Admittedly, deceased was married and having two children. Therefore, it cannot be said that he was incomeless. The accident occurred in the year 2015. Having regard to the above said facts, we find that the income of the deceased should have been assessed at Rs.9,000/- per month instead of Rs.7,500/- per month as assessed by the Tribunal.

The Honble Apex Court in the case of National Insurance Co. Ltd., Vs. Pranay Sethi and others, (2017) ACJ 2700 [LQ/SC/2017/1578] has laid down the guidelines which reads as under:

61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) XXX

(ii) XXX

(iii) XXX

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of the judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

The deceased was aged 27 years as on the date of accident. Therefore, multiplier applicable would be 17. Thus, claimants would be entitled for compensation towards loss of dependency as follows:

Monthly income of the deceased

Rs.9,000/-

Add 40% of the income (Rs.9,000x40%)

Rs.3,600/-



100

Rs.12,600/-

Less 1/4th towards personal expenses

(Rs.12,600x1/4)

Rs.3,150/-

Rs.9,450/-

Net income would be Rs.9,450/- per month.

Rs.9,450/-x 12 x 17 = 19,27,800/-

22. In Pranay Sethis case referred to supra, compensation under conventional heads which has been ordered to be paid is in a sum of Rs.70,000/- in all, i.e., loss of estate, loss of consortium and funeral expenses at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Accordingly, we award a sum of Rs.70,000/- under conventional heads.

23. However, due to the sudden death of the deceased, his minor children have lost parental love and affection, parental aid and protection. The mother of the deceased has also lost her son. Therefore, the compensation awardable to the minor children and aged parents is determined in the ruling of the Honble Apex Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others, (2018) ACJ 2782 whereunder it has been held:

"8.7 A Constitution Bench of this court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium.

In legal parlance, consortium is a compendious term which encompasses spousal consortium, parental consortium and filial consortium.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse [Rajesh v. Rajbir Singh, (2013) ACJ 1403(SC)].

Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of company, society, cooperation, affection, and aid of the other in every conjugal relation. [Blacks Law Dictionary: 5th Edn., 1979].

Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.

Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions the world over have recognized that the value of a childs consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation towards loss of love, affection, care and companionship of the deceased child.

The Motor Vehicles act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where the parents have lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium.

Parental consortium is awarded to the children who lose their parents in motor vehicle accidents under the.

The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under loss of consortium as laid down in Pranay Sethi, 2017 ACJ 2700 (SC)."

Accordingly, minor children/claimants No.2 and 3 would entitled to Rs.50,000/- each under the head loss of paternal love and affection or parental consortium on account of premature death of their father.

The mother of the deceased has lost her son. Therefore, she would also be entitled for compensation of Rs.40,000/- under the head filial consortium.

24. Thus, total compensation payable to the claimants can be quantified as under:

Sl.No.

Heads

Amount

1.

Loss of dependency

Rs.19,27,800/-

2.

Conventional heads

Rs. 70,000/-

3.

Loss of parental love and affection (Rs.50,000/- payable to each claimants No.2 & 3)

Rs. 1,00,000/-

4.

Filial consortium payable to claimant No.4 (mother)

Rs. 40,000/-

Total

Rs.21,37,800/-

25. Tribunal has awarded interest @ 6% per annum. However, this Court has consistently held that claimants would be entitled to interest @ 8% per annum from the date of petition till date of payment. Hence, it is held that claimants are entitled for interest @ 8% per annum. Accordingly, point No.2 is answered in the affirmative.

26. Tribunal has apportioned the compensation payable to the claimants and same ratio of apportionment shall be applicable even for the enhanced compensation. However, we disagree with the decision of the Tribunal in releasing the compensation amount to claimants without ordering for any deposit so far as widow and the mother of the deceased are concerned.

27. The compensation awarded to the minor children i.e., claimants No.2 and 3 is ordered to be kept in Fixed Deposit in any Nationalized Bank or Scheduled Bank of 1st claimants choice until they attain majority. However, 1st claimant would be entitled to draw interest.

Out of the compensation awarded to the claimant No.1, 80% of her share of compensation is ordered to be kept in Fixed Deposit in any Nationalised Bank or Scheduled Bank of her choice for a period of five years with liberty to draw periodical interest. Remaining amount shall be released in her favour.

As regards fourth claimant is concerned, 50% of her share is ordered to be kept in Fixed Deposit in any Nationalized Bank or Scheduled Bank of her choice for a period of five years and remaining amount shall be released in her favour.

28. Accordingly, we pass the following

ORDER

1) Appeal filed by the appellants/claimants is allowed.

2) Judgment and award dated 07.10.2017 passed by IX Addl. District and Sessions Judge and Addl. M.A.C.T., Belagavi in M.V.C. No.2038/2015 stands modified. The claimants are entitled for a total compensation of Rs.21,37,800/- with interest at 8% p.a. from the date of petition till the date of payment or deposit, whichever is earlier.

3) The finding of the Tribunal in respect of fastening liability on the rider of the motorcycle at 60% is set aside.

4) Respondent No.2 is held liable to pay 70% of the compensation amount and respondent No.3 is held liable to pay remaining 30% of the compensation amount with interest at 8% p.a. from the date of petition till the date of payment or deposit, whichever is earlier.

5) Respondents No.2 and 3 shall deposit the compensation amount with interest within six weeks from the date of this order.

6) Registry to transmit the records along with amount in deposit to the jurisdictional Tribunal for disbursement of the compensation as ordered hereinabove.