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2011 DIGILAW 61 (CHH)

Kamdev Barle v. Asif Hussain

2011-02-14

RAJEEV GUPTA, SUNIL KUMAR SINHA

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JUDGMENT : Rajeev Gupta, J. Appellant Kamdev Barle is seeking enhancement of the compensation awarded by the Second Additional Motor Accidents Claims Tribunal, Raipur (for short, 'the Tribunal') vide award dated 30.7.2002, passed in Claim Case No. 3 of 2002. As against the compensation amount of Rs. 4,60,000 claimed by the appellant-claimant by filing a claim petition u/s 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 11.6.2001, the Tribunal awarded a total sum of Rs. 49,080 as compensation along with interest at the rate of 6 per cent per annum from the date of filing of the claim petition till the date of actual payment. 2. The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Kamdev Barle sustained multiple serious injuries including fractures in the motor accident on 11.6.2001; the injuries and fractures sustained by the claimant in the motor accident resulted in permanent disability to the extent of 50 per cent; the driver of the scooter on which the claimant was travelling as a pillion rider and the driver of the other vehicle (a car) bearing registration No. MP 23-L7667 equally contributed to the accident; as the above offending vehicle (car) on the date of the accident was insured with National Insurance Co. Ltd. and the insurance company could not establish any breach of policy conditions, the insurance company was liable to pay 50 per cent of the compensation assessed to the claimant. 3. The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant and the resultant permanent disability to the extent of 50 per cent and the amount proved to have been spent on his treatment, assessed Rs. 89,100 towards loss in future earning capacity; and Rs. 9,060 towards medical expenses. The Tribunal, thus, assessed the total compensation at Rs. 98,160. As the driver of the offending vehicle (car) was found liable to the extent of 50 per cent, the insurer of the car was directed to pay 50 per cent of Rs. 98,160, i.e., Rs. 49,080 as compensation to the claimant. The Claims Tribunal further directed payment of interest on the above amount of compensation of Rs. 49,080 at the rate of 6 per cent per annum from the date of filing of the claim petition till the date of actual payment. 4. 98,160, i.e., Rs. 49,080 as compensation to the claimant. The Claims Tribunal further directed payment of interest on the above amount of compensation of Rs. 49,080 at the rate of 6 per cent per annum from the date of filing of the claim petition till the date of actual payment. 4. Mr. Shivendu Pandya, learned counsel for the appellant, submitted that the Tribunal has erred in holding that it was a case of contributory negligence and in awarding only 50 per cent of the compensation assessed to the claimant as in fact, it was a case of composite negligence wherein the choice is with the claimant to claim compensation from any of the two tortfeasors. 5. Mr. Q. Aziz, learned counsel for the respondent No. 3, National Insurance Co. Ltd., on the other hand, supported the award and contended that the compensation of Rs. 49,080 awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 6. Admittedly, claimant Kamdev Barle was a pillion rider on the scooter which was dashed by the other vehicle (car). As the claimant was not driving any of the two vehicles, in view of the dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (2008) 3 SCC 748 , it would be a case of composite negligence and not a case of contributory negligence. 7. We, therefore, set aside the finding recorded by the Tribunal holding it to be a case of contributory negligence. We hold that it was a case of composite negligence where the claimant was entitled to claim the entire compensation from any of the two tortfeasors. As the claimant in the present case opted to claim the entire compensation from the driver, owner and insurer of the car, the insurer of the car is liable to pay the entire amount of compensation of Rs. 98,160 assessed by the Tribunal. 8. As 50 per cent of Rs. 98,160 has already been received by the claimant from the insurer of the car, the liability of the insurer of the car now is to pay the remaining 50 per cent of Rs. 98,160, i.e., Rs. 49,080 to the claimant. 9. The claimant is further awarded a sum of Rs. 4,920 as interest on the balance amount of Rs. 49,080. 10. 98,160, i.e., Rs. 49,080 to the claimant. 9. The claimant is further awarded a sum of Rs. 4,920 as interest on the balance amount of Rs. 49,080. 10. For the foregoing reasons, the appeal filed by the appellant-claimant for enhancement of the compensation is allowed in part. The insurer of the car is directed to pay the remaining amount of Rs. 49,080 and the quantified amount of interest of Rs. 4,920 to the claimant in addition to the sum of Rs. 49,080 already awarded by the Tribunal. 11. Respondent No. 3, National Insurance Co. Ltd., is granted 3 months' time for depositing the total sum of Rs. 54,000 (Rs. 49,080 towards the enhanced amount of compensation plus Rs. 4,920 as quantified amount of interest on the enhanced amount of compensation of Rs. 49,080) before the concerned Claims Tribunal. No order as to costs.