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2011 DIGILAW 623 (GAU)

Jagdish Prasad Agarwalla v. Upendra Singh

2011-07-27

MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, C.J. 1. The appellant is aggrieved by an award dated 19th September, 1998 passed by the Motor Accident Claims Tribunal, Kamrup, in M.A.C. Case No. 298 (K)/1993. 2. The appellant was travelling in an Ambassador car which had a head on collision with a canter/bus on 15th April, 1993. The appellant suffered some injuries which led to his hospitalization in Patna, Bihar, for about one and half months. 3. The appellant applied for compensation before the Tribunal and by the award under appeal, the appellant was granted compensation of Rs. 80,000/-. The various heads under which the appellant was granted compensation are as follows :- 1. Expenses caused by injuries with incidental charges ` 40,000/- 2. Pain and sufferings ` 25,000/- 3. Loss of amenities of life ` 15,000/- Total ` 80,000/- 4. Alongwith the compensation, it was directed that interest @ 12% per annum be paid to the claimant from the date of institution of the claim petition i.e., 19th June, 1993 till realization of the amount. Liability to the extent of only 50% of the awarded amount was placed on the United India Insurance Co. 5. Feeling aggrieved, the appellant has preferred this appeal and three contentions have been urged by his learned Counsel. 6. The first contention is that the Tribunal erred in awarding only 50% of the amount even though it is a case of composite negligence as held by the Tribunal. It is further submitted that the appellant is entitled to the full amount from the respondent and not only 50% as awarded. 7. In this regard, reliance has been placed by the learned Counsel for the appellant on Sudhir Kumar Rana v. Surinder Singh and others, (2008) 12 S.C.C. 436 : 2008 (2) T.A.C. 769. In that decision, the Supreme Court has referred to T.O. Anthony v. Karvaran (2008) 3 S.C.C. 748 : 2008 (3) T.A.C 193. Reference has also been made to Andhra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and Others (2008) 6 S.C.C. 767 : 2008 (1) T.A.C. 769. The common passages in the above judgments which deals with composite negligence as against contributory negligence read as follows : 6. 'Composite negligence' refers to the negligence on the part of two or more persons. The common passages in the above judgments which deals with composite negligence as against contributory negligence read as follows : 6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the driver claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for accident and the extent of his responsibility, that is, his contributory negligence. Therefore, where the injured is himself partly liable, the principle of 'composite negligence' will not apply no can there be an automatic inference that the negligence was 50 : 50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error. 8. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error. 8. A perusal of the above passengers clearly shows that it is entirely upto the injured claimant in a case of composite negligence to proceed against each wrong doer jointly or severally and each wrongdoer is jointly and severally liable to the injured for payment of the entire damages. 9. In view of the aforesaid decisions of the Supreme Court, the Tribunal was clearly in error in awarding only 50% of the amount to the claimant from the Insurance Company i.e. M/s. United Indian Insurance Company. The appellant is entitled to the entire amount from M/s. United India Insurance Company since it is a case of composite negligence. 10. The second submission of learned Counsel for the claimant/appellant is that the Tribunal has awarded only Rs. 30,000/- towards medical expenses since vouchers for Rs. 30,000/- only were produced by the appellant. He says that there are certain other expenses for which vouchers could not be produced such as taxi fare etc. 11. I find from a reading of the award that it is no doubt mentioned by the Tribunal that vouchers for Rs. 30,000/- have only been produced. However, I find that an amount of Rs. 40,000/- has been paid under the head "expenses caused by injuries with incidental charges". Therefore, the Tribunal has taken an amount of Rs. 10,000/- towards incidental charges incurred by the appellant for the treatment of his injuries apart from Rs. 30,000/- for which vouchers were produced. This amount of Rs. 10,000/- would, therefore, take care of the expenses mentioned by learned Counsel for the appellant such as taxi fare etc. I do not find any substance in the contention of learned Counsel for the appellant that his client is not awarded any incidental charges. 12. The third submission made by learned Counsel for the appellant is that there has been a loss of earning and profit since the appellant was in hospital for one and half months. He says that the appellant was a contractor aged about 48 years and he had a family. Since, he was in hospital, he was unable to earn anything during this period, therefore, the Tribunal ought to have awarded some amount under this head. He says that the appellant was a contractor aged about 48 years and he had a family. Since, he was in hospital, he was unable to earn anything during this period, therefore, the Tribunal ought to have awarded some amount under this head. 13. I am in agreement with learned Counsel for the appellant in so far as this submission is concerned. I find from a reading of the award that towards loss of earnings and profit, the Tribunal has not awarded any amount since no evidence was led to ascertain the actual loss of business. 14. Learned Counsel for the appellant had drawn my attention to Laxmi Devi v. Mohammad Tabbar. 2008 (2) T.A.C. 394 (S.C.). In that decision, in a somewhat similar situation, the Supreme Court took the view that an amount of Rs. 3,000/- per month would appear to be correct as the value of notional income. This was based on the provisions in the Second Schedule to the Motor Vehicles Act where the notional income even in the case of an unemployed person is taken as Rs. 15,000/- per annum. Due to the passage of time, the notional income has increased from Rs. 15,000/-. It is on this basis that the Supreme Court accepted an amount of Rs. 3,000/- per month or Rs. 36,000/- per annum as notional income of an unemployed person. 15. Taking the notional income as postulated by the Supreme Court in Laxmi Devi. In am of the opinion that the appellant would be entitled to Rs. 3,000/- per month towards loss of notional income for the period he was not able to work on account of the injury suffered. Since, the appellant was unable to work for about a year, which is not disputed, he would be entitled to Rs. 36,000/- on this account. 16. Consequently, the amount of Rs. 40,000/- being 50% of the balance amount due to the appellant as awarded by the Tribunal be paid with interest at 9% from the date of institution of the claim petition i.e., 19th June, 1993 till payment by the United India Insurance Company. In addition, thereto, the appellant would be entitled to an amount of Rs. 36,000/- towards loss of notional income with interest of 9% per annum from the date of institution of the claim petition i.e. 19th June, 1993. 17. With the above direction, the appeal is disposed off. In addition, thereto, the appellant would be entitled to an amount of Rs. 36,000/- towards loss of notional income with interest of 9% per annum from the date of institution of the claim petition i.e. 19th June, 1993. 17. With the above direction, the appeal is disposed off. Trial Court records be sent back immediately.