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2018 DIGILAW 676 (KAR)

C. P. Naveen Kumar v. A. M. Suresh

2018-06-08

S.SUJATHA

body2018
JUDGMENT : S. Sujatha, J. The claimant is in appeal, challenging the judgment and award passed by the Motor Claims Tribunal, Chikmagalur ['Tribunal' for short] in MVC.No.4/2011. 2. The claimant had filed the petition under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation of Rs.15,00,000/- for the injuries sustained by him in the road traffic accident that occurred on 04.06.2010, contending that while he travelling as an occupant in Maruti Alto Car bearing registration No.KA-03/MG 1551 driven by one Sri. C.C. Kiran, the driver-cum-owner of lorry bearing No.KA-09/A-3271 drove in a rash and negligent manner and dashed against the Maruti Alto car. Negligence was alleged on the driver-cum-owner of the lorry bearing No.KA-09/A 3271 [offending vehicle]. 3. On service of notice, both the respondents herein, appeared and contested the claim. A defence was taken by both the respondents that the negligence of the driver of the Alto Car was the cause for the accident. The Tribunal considering the police records and other incriminating material evidence, held that the accident occurred due to the contributory negligence of both the drivers of the vehicles involved, negligence of the lorry driver was apportioned at 60% and that of the car driver at 40%. Considering the material evidence, awarded total compensation of Rs.1,78,000/- under the different heads with interest at 6% per annum from the date of the petition till the date of realization. Liability was fastened on the respondent Nos.1 and 2 being he owners and insurer of the lorry [offending vehicle] jointly and severally to the extent of 60%. Being aggrieved by the same, this appeal is preferred by the claimant. 4. The arguments of the learned counsel appearing for the appellant are two fold. Firstly, the contributory negligence attributed to the extent of 40% on the driver of the Alto Car is challenged on the ground that the claimant was traveling as an inmate/occupant of the Maruti Alto Car bearing No.KA-03/MG 1551; no contributory negligence can be fixed on the occupant/inmate of the vehicle. There was no negligence of whatsoever manner on the part of the claimant in causing the accident in question. It was mainly due to the negligence of the driver of the offending vehicle who caused the accident. There was no negligence of whatsoever manner on the part of the claimant in causing the accident in question. It was mainly due to the negligence of the driver of the offending vehicle who caused the accident. Even assuming there was any negligence on the part of the driver of the Maruti Alto Car, it is a composite negligence of the two drivers of the vehicles involved in the accident for which the claimant cannot be denied compensation attributing contributory negligence on his part. 5. Secondly, the quantum of compensation has been challenged on the ground that the notional monthly income of Rs.5,000/- by the Tribunal in as much as the claimant who was aged about 24 years at the time of accident is irrational and arbitrary. It is contended that the disability of 10% to the whole body assessed by the Tribunal is contrary to the evidence of the doctor who was examined as CW.1. The injuries sustained by the claimant being grievous in nature and its impact for the rest of his life ought to have been analyzed by the Tribunal in a right perspective. Learned counsel submits that the Tribunal grossly erred in not awarding compensation towards loss of amenities despite there being no dispute regarding grievous injuries sustained by the claimant which would render the claimant crippled for life, in addition to the lot of discomforts and inconveniences which he has to face for the rest of his life. Accordingly, seeks for enhancement of compensation under the different heads. 6. Learned counsel Sri. E.I. Sanmathi, appearing for the respondent No.2 justifying the impugned judgment and award, submitted that to determine the composite negligence as regards the drivers of the two vehicles, the owner and the insurer of both the vehicles had to be arrayed as parties to the proceedings. In the absence of arraying the owner and insurer of the Maruti Alto Car, no arguments advanced by the learned counsel for the appellant in as much as composite negligence can be countenanced. On this ground alone, the arguments of the learned counsel for the appellant deserves to be negated. It was argued that fixing the contributory negligence at 40% on the claimant is justifiable and cannot be interfered with. 7. On this ground alone, the arguments of the learned counsel for the appellant deserves to be negated. It was argued that fixing the contributory negligence at 40% on the claimant is justifiable and cannot be interfered with. 7. As regards the quantum of compensation awarded by the Tribunal, it was submitted that the Tribunal considered the disability of 10% based on the disability assessed by the doctor. In the absence of substantial evidence placed on record to establish the factum of income, the Trial Court was justified in determining the same on notional basis at Rs.5,000/-, considering the age of the claimant and the date of the accident. The compensation awarded under the different heads being just and proper, sought for dismissal of the appeal. 8. Heard the learned counsel for the parties and perused the material on record. 9. It is not in dispute that the claimant was travelling as an occupant of the Maruti Alto Car bearing No.KA-03/MG 1551, belonging to one Sri. Santhosh, driven by one C.C. Kiran. Ex.R3 and R4 photos clearly indicates that the accident in question occurred due to head on collusion between the car and the lorry. Placing reliance on these exhibits as well as the rough sketch of the scene of occurrence prepared by the Investigation Officer, the Tribunal has return a finding that the accident occurred due to the contributory negligence of both the drivers and the negligence of the lorry driver is apportioned at 60% and that of the appellant at 40%. This finding of the Tribunal cannot be countenanced for the reason that in the case of contributory negligence, it is the lack of care on the part of the person who is claiming compensation which contributed to the occurrence of the accident. The contributory negligence necessarily involves negligence on the part of the claimant. That is not a situation in the present set of facts. It is admitted fact that the claimant was an occupant of Maruti Alto Car and the driver was Sri. C.C. Kiran. If there is any negligence on the part of the driver of the Maruti Alto Car as well as the driver of the offending vehicle, the claimant cannot be penalized. It is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of Khenyei Vs. C.C. Kiran. If there is any negligence on the part of the driver of the Maruti Alto Car as well as the driver of the offending vehicle, the claimant cannot be penalized. It is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Company Limited & Ors., (2015) 9 SCC 273 whereby their lordships have discussed the distinction between composite and contributory negligence. In para 15, it is held thus: "15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748 has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : "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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer separately. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer 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 of 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 stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers 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 the 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 nor 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." 10. The Tribunal failed to examine this aspect of the matter and fixed the contributory negligence of 40% on the appellant which is untenable and cannot be sustained. The Hon'ble Apex Court has categorically held that it is not necessary to implead all joint tort feasors and due to failure of impleadment of all joint tort feasors, compensation cannot be reduced to the extent of negligence of non- impleaded tort feasors. The liability of each and every joint tort feasor vis-a-vis to claimant cannot be bifurcated as it is joint and several liability. The question as to the remedies available to one of the joint tort feasors from whom compensation has been recovered, when the other joint tort feasor has not been impleaded, has been addressed. The liability of each and every joint tort feasor vis-a-vis to claimant cannot be bifurcated as it is joint and several liability. The question as to the remedies available to one of the joint tort feasors from whom compensation has been recovered, when the other joint tort feasor has not been impleaded, has been addressed. It is held that the apportionment of the composite negligence cannot be made in the absence of impleadment of joint tort feasors. Therefore, it would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the driver of the 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 feasors in independent proceedings after passing of the decree or award. The main question involved whether it is open to a claimant to recover entire compensation from one of the joint tort feasor particularly when in the accident caused by the composite negligence of drivers of two vehicles, has been answered. It is held that in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. In such case, the 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 feasor is joint and several. 11. The division Bench of this Court in the Case of Thimmaiah Vs. The Managing Director, Ksrtc in MFA No. 3626/2013 [DD 14.07.2015], following the judgment of KHENYEI and another Division Bench of This Court in the case of M/s. United India Insurance Co. Ltd. Vs. Radha A. Kamath& Ors., 2011 4 AIR(Kar) 292, held that the claimant can recover entire compensation from any one of the joint tort feasors since the owner/insurer of the motorcycle on which the deceased therein was traveling was not arrayed as respondent, it was held that he is entitled to recover the entire compensation, the respondent is at liberty to recover 50% of the compensation amount so paid from the owner of the motorcycle involved therein. Following these judgments, this Court in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Following these judgments, this Court in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Shivaji Dattu Nikam & Ors., (2016) ILR(Kar) 3770 held that pillion rider cannot contribute to the occurrence of the accident unless any special circumstances is pointed out by the insurer that he caused the accident. The rider of the motor vehicle may be at fault that cannot be extended to the pillion rider to fix the negligence. 12. In the light of these judgments, finding of the Tribunal fixing the contributory negligence of 40% on the appellant is set aside. The respondent is liable to pay the awarded compensation and is at liberty to recover 50% of the compensation from the owner/insurer of the Maruti Alto Car bearing No.KA-03/MG 1551. Since the owner/insurer of the said car is not arrayed as respondent in the proceedings and the option being left to the claimant to recover from any one of the tort feasors. 13. As regards the quantum of compensation awarded, it is evident from the records that the claimant was aged about 24 years at the time of the accident and the accident occurred on 04.06.2010. Though the claimant contended that he was earning more than Rs.15,000/- per month by working as sales manager in KUTONS GARMENTS, Chikmagalur, no concrete evidence is placed on record to establish the same. In the circumstances, applying the normal mode of determination now made by this Court as well as Adalat, the monthly income of the claimant can be fixed at Rs.5,500/-. The disability determined and assessed by the Tribunal is that of the assessment made by the doctor CW.1. Hence, 10% disability assessed by the Tribunal do not warrant any interference. Applying the same, loss of future income due to disability would be Rs.1,18,500/-. The claimant has taken treatment as an inpatient for nearly about 25 days in District Hospital, Chikmagaluru and has undergone surgery with the close reduction, internal fixation with inter locking nail, for which a sum of Rs.30,000/- would be the reasonable compensation towards pain and suffering. A sum of Rs.16,500/- is awarded towards loss of income during the laid up period. The claimant is entitled to compensation under the head, loss of amenities considering the nature of injuries and its impact for the rest of his life. This Court deems it appropriate to award a sum of Rs.25,000/- under this head. 14. A sum of Rs.16,500/- is awarded towards loss of income during the laid up period. The claimant is entitled to compensation under the head, loss of amenities considering the nature of injuries and its impact for the rest of his life. This Court deems it appropriate to award a sum of Rs.25,000/- under this head. 14. Thus, the total compensation awarded by the Tribunal is modified and enhanced as under:- Sl. No. Particulars Amount [in Rs.] 1 Pain and suffering 30,000 2 Attendant Charges 5,000 3 Food and nourishment 5,000 4 Traveling expenses 3,000 5 Medical expenses 10,000 6 Future medical expenses 15,000 7 Loss of income during the laid up period 16,500 8 Loss of income due to disability 1,18,800 9 Loss of amenities 25,000 TOTAL 2,28,300 15. The appellant shall be entitled to total compensation of Rs.2,28,300/- as against Rs.1,06,800/- awarded by the Tribunal [60% of the total compensation determined at Rs.1,78,000/-] which shall carry interest at 6% per annum from the date of the petition till the date of realization. Respondent No.2 being the insurer of the offending vehicle, is liable to pay the compensation as aforesaid. However, respondent No.2 is at liberty to recover 50% of the compensation amount from the owner/insurer of the vehicle Maruti Alto Car. Accordingly, appeal is allowed to the extent indicated above.