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2019 DIGILAW 2675 (BOM)

Oriental Insurance Company Ltd. v. Radhika

2019-12-06

VINAY JOSHI

body2019
JUDGMENT : VINAY JOSHI, J. 1. Heard. 2. Admit. 3. Mr. S.O. Ahmed, learned Counsel waives service for respondent no. 1. None appears for respondent nos. 2 and 3, though served. 4. This is an appeal of Insurer challenging the Judgment and Award, dated 31.10.2017 passed by the Member, Motor Accident Claims Tribunal, Chandrapur in M.A.C.P. No. 144 of 2004. 5. Initially, respondent no. 1 (petitioner) had approached to the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the M.V. Act”) for grant of compensation on account of sustaining permanent disablement in a vehicular accident dated 8.2.2004. It is the case of petitioner/claimant that, on the date of accident, she was travelling by an auto rickshaw bearing registration no. MH-34/D/793 alongwith her family members. At the relevant time, the offending truck bearing registration no. MP-23/P/9862 came from the opposite direction in a high speed and gave forceful dash to the auto rickshaw. The said accident occurred due to rash and negligent driving on the part of both the drivers namely the driver of auto rickshaw and the driver of truck. 6. In the said accident, the petitioner, who was barely 12 years old, sustained severe bodily injuries for which she was hospitalised. She was operated and took further treatment. However, she sustained permanent disablement. On these pleadings, the petitioner approached to the Tribunal against the owner and Insurer of auto rickshaw and owner of the truck. 7. The owner and Insurer of auto rickshaw resisted the claim on multiple grounds. It is contented that the accident occurred due to sole negligence of truck driver. The auto rickshaw was carrying excess passengers at the relevant time. Hence, there is breach of terms and conditions of Insurance policy which exonerates the Insurer from the liability. 8. Having regard to the oral and documentary evidence, the Tribunal partially allowed the claim. In the said accident, some other passengers of auto rickshaw sustained injuries resulting into several claims. The Judgment and Award of connected petitions bearing M.A.C.P. Nos. 55 of 2004 and 59 of 2004 were tendered before the Tribunal during the course of evidence. 8. Having regard to the oral and documentary evidence, the Tribunal partially allowed the claim. In the said accident, some other passengers of auto rickshaw sustained injuries resulting into several claims. The Judgment and Award of connected petitions bearing M.A.C.P. Nos. 55 of 2004 and 59 of 2004 were tendered before the Tribunal during the course of evidence. In these Judgments, the then Tribunal arrived on the conclusion that, it is a case of contributory (In fact, it is composite) negligence where negligence is apportioned to the extent of 30% to the auto rickshaw driver and 70% to the truck driver. Considering the earlier adjudication on the point of negligence in sister petitions, the Tribunal has accepted the same and proceeded further. On facts, the Tribunal assessed the claimants evidence as well as the evidence of Medical Officer. On that basis, the Tribunal awarded compensation to the tune of Rs. 3,00,000/- towards permanent disability and Rs. 50,000/- towards medical expenses. As such, the Tribunal has quantified total compensation of Rs. 3,50,000/- to be paid along with interest @ 9% p.a. Though the Tribunal has accepted negligence on the part of drivers of auto rickshaw and truck; however, the liability was fastened jointly and severally on the owner and insurer of auto rickshaw and owner of truck. The Tribunal referred the Apex Court decision in the case of Pawan Kumar and Others vs. M/s. Harikishan Dass Mohan Lal and Others, 2014 ACJ 704 while fastening joint and several liability. 9. The appellant/Insurer is mainly aggrieved by the Tribunal’s order of saddling joint and several liability. It is contention of appellant (Insurer of auto rickshaw) that, in the sister petitions which were relied by the Tribunal, the liability was apportioned. According to Insurer, it was incumbent on the Tribunal to consider the view taken in the earlier petitions arising out of the same accident. 10. In response, the respondent/claimant heavily relied on the Judgment of Pawan Kumar and another (referred supra) to impress that the Tribunal has rightly appreciated the legal position and the claimant being a third party, has saddled joint and several liability, which is in accordance with law. In addition to that, the respondent has claimed for enhancement of compensation amount. According to claimant, the Tribunal has not considered the effect of permanent disability and therefore, compensation needs to be enhanced. In addition to that, the respondent has claimed for enhancement of compensation amount. According to claimant, the Tribunal has not considered the effect of permanent disability and therefore, compensation needs to be enhanced. The Appellant has countered said submission by stating that the respondent/claimant has neither filed Cross appeal nor Cross objection. Therefore, the claim of enhancement raised first time at the time of hearing of appeal cannot be entertained. 11. After hearing the learned Counsel for the respective parties, I find that the following points arise for consideration: (a) Whether the Claims Tribunal is justified in fixing joint and several liability on both the vehicles? (b) Whether it is obligatory on the Tribunal while deciding subsequent claims to follow the finding recorded by another Tribunal in earlier point of time? (c) Whether this Court can consider the prayer of enhancement of compensation in absence of Cross appeal or Cross-objection? 12. Most of the facts are not in dispute. The Claimant/minor girl aged 12 years was traveling by an auto rickshaw as a passenger. There was dash between the auto rickshaw and truck, in which the claimant sustained permanent disablement. It is undisputed that some claims arising out of the same accident were filed and decided earlier by the Tribunal. To be specific, M.A.C.P. No. 55 of 2004 was decided on 30.4.2013, whilst M.A.C.P. No. 59 of 2004 was decided on 11.8.2016. Copies of both the Judgments were produced on record. In the first Claim M.A.C.P. No. 55 of 2004, the then Tribunal, on the basis of material on record, held that the driver of Auto Rickshaw was negligent to the extent of 30% whilst the driver of Truck was negligent to the extent of 70%. In subsequent petition, M.A.C.P. No. 59 of 2004, the then Tribunal also answered the issue of negligence in similar manner. Both the Tribunals also apportioned the liability separately to that extent. 13. Coming to the impugned Judgment, the Tribunal took note of two earlier decisions arising out of the same accident and observed that the point of negligence decided in earlier claims has not been challenged, hence, there is no reason to take a different view. The Tribunal solely relied on the finding of fact recorded in the earlier petition on the point of negligence. No doubt the factual aspect of negligence decided by the earlier Forum was followed by the subsequent Tribunal. The Tribunal solely relied on the finding of fact recorded in the earlier petition on the point of negligence. No doubt the factual aspect of negligence decided by the earlier Forum was followed by the subsequent Tribunal. The parties are not in dispute to that extent. But controversy lies further about imposition of liability. It is stand of appellant/Insurer that, in earlier Claim Petitions, the then Tribunal has also apportioned the awarded compensation in two fractions i.e. to the extent of 30% on auto rickshaw and 70% on truck. Precisely only 30% liability was saddled on the owner and Insurer of auto rickshaw in earlier two petitions. 14. According to Insurer, the Tribunal which decided subsequent claim (impugned herein) ought to have followed the earlier course of making apportionment while saddling liability. In other words, it is Insurer’s contention that the Tribunal ought to have saddled only 30% liability out of ascertained sum of compensation on the owner and insurer of auto rickshaw. In support of said contention, the Insurer relied on the Judgment of this Court in the case of United India Insurance Co. Aurangabad vs. Khubuddin S/o Sumsherali Inamdar and Others, First Appeal No. 49 of 2001. In said case, the accident was in between the Luxury Bus and Truck. Similarly, several claims arose and came to be decided at different point of time. The Tribunal which decided the earlier petition has held that the owner, driver and insurer of the Luxury Bus are liable to pay compensation, but, had not saddled any liability upon the owner and insurer of the Truck. Whereas, the Tribunal which decided the subsequent claims held that the driver of both the vehicles i.e. Luxury Bus and Truck are liable for the accident in certain proportion. In such a background, this Court observed that the Tribunal which decided the subsequent claim arising out of the one and same accident must follow the finding of earlier Tribunal, in so far as the negligence part is concerned. In the case at hand, the Tribunal which decided the subsequent claim, impugned herein, has followed the finding of fact of the earlier Tribunal, as regards to the point of negligence. The Tribunal by referring the earlier decision, without assigning any reason has simply followed the said finding of fact which is evident from paragraph no. 11 of the impugned judgment. The Tribunal by referring the earlier decision, without assigning any reason has simply followed the said finding of fact which is evident from paragraph no. 11 of the impugned judgment. Therefore, the above judgment of this Court to the extent of following the finding of negligence recorded by the earlier Tribunal has been followed by the Tribunal. As regards to apportionment of payment of compensation is concerned, the said aspect will be dealt with after a short while. 15. In order to impress his submission, the appellant also placed reliance on the Judgment of this Court in the case of M/s. Jaihind Travelers, through Prop. Ajay Sahebrao Raut, Yavatmal vs. Sunil S/o Suryakant Jaiswal and Another, First Appeal No. 220 of 2004 with connected appeals, dated 7th March, 2017. In the said case, this Court equally observed that when the accident is one and the same and the adjudication is also based on the same set of documents, two distinct orders passed on identical facts cannot be permitted to operate. 16. The impugned order discloses that the Tribunal has not undertaken exercise to re-assess the factual aspect of negligence, but simply followed earlier finding that the questioned accident was outcome of negligence of both the vehicles. As noted above, the Tribunal has not deviated from earlier decision about negligence of both the vehicles. 17. The real controversy is about following the course which was adopted in earlier Judgments of making apportionment in saddling the liability separately on two wrongdoers. True, in M.A.C.P. Nos. 55 of 2004 and 59 of 2004, which were decided in earlier point of time, the then Tribunal has apportioned the liability to the extent of 30% on auto rickshaw and 70% on truck. Concededly, in subsequent proceeding, the Tribunal has not followed the said course of making apportionment of liability, but has fastened joint and several liability on both wrongdoers. This was done by the Tribunal consciously by referring the law laid down by the Apex Court in the case of Pawan Kumar (referred supra). 18. The Insurer’s stand whether it was obligatory on subsequent Tribunal to follow the view of earlier Tribunal of making apportionment can be effectively answered after going through the position of law. Initially, this aspect was considered by Hon’ble Supreme Court in the case of T.O. Anthony vs. Karvarnan and Others, 2008 ACJ 1165 . 18. The Insurer’s stand whether it was obligatory on subsequent Tribunal to follow the view of earlier Tribunal of making apportionment can be effectively answered after going through the position of law. Initially, this aspect was considered by Hon’ble Supreme Court in the case of T.O. Anthony vs. Karvarnan and Others, 2008 ACJ 1165 . In the said case, the Hon’ble Supreme Court considered the issue and held that, in such a case, each wrong doer is jointly and severally liable to the injured for payment of entire damages. It is choice of injured 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 it is necessary for the Court to determine separate extent of liability of each wrong doer. 19. Para 6 of the judgment in case of T.O. Anthony (supra) which is relevant may be extracted herein-below: “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.” 20. Subsequently, Hon’ble Supreme Court in another reported case of New India Assurance Co. 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.” 20. Subsequently, Hon’ble Supreme Court in another reported case of New India Assurance Co. Ltd. vs. Shobha and Others, 2011 ACJ 855 affirmed the said view and held that neither claimants need to establish nor it is necessary for the Tribunal to determine extent of blame on each driver separately. So also the claimants are free to recover compensation awarded from any of the wrongdoers and each wrongdoer is jointly and severally liable for payment of entire compensation. Later on, the three Judge decision in the case of Pawan Kumar has upheld the said view by holding that both wrongdoers are jointly and severally liable to pay compensation to third party and it is open for the claimants to enforce the Award against both or any one of them. 21. Thus, the law as laid down by Hon’ble Supreme Court in series of Judgments clearly conveys that neither the Tribunal is required to make apportionment of liability nor the claimant can be precluded from recovering the entire awarded sum from any of the wrongdoer. It is made clear that both the wrongdoers are jointly and severally liable to pay awarded sum and it can be recovered fully by the claimant from either of the wrongdoer as he chooses. 22. In the wake of such settled legal position, I find no irregularity committed by the Tribunal at all. Rather the Tribunal has rightly considered the settled legal position and passed the order of fastening joint and several liability, which is in accordance with law. No doubt the Tribunal, while deciding subsequent claim arising out of the same accident, is bound to follow earlier decision, but, to the extent of factual findings only. It does not mean that, if earlier Tribunal has taken a view against the settled law, then subsequent Tribunal should also percolate the same irregularity. By all means, the subsequent Tribunal is having complete freedom to decide the legal issue pertaining to relief clause, on the basis of law which stands. In other words, subsequent Tribunal has to follow factual findings only and not the nature of relief which is technical one. By all means, the subsequent Tribunal is having complete freedom to decide the legal issue pertaining to relief clause, on the basis of law which stands. In other words, subsequent Tribunal has to follow factual findings only and not the nature of relief which is technical one. Therefore, the submission of Insurer absolutely carries no merit at all. In the result, the finding of Tribunal of fastening joint and several liability on both wrong doers is unimpeachable. 23. The next limb of controversy is about claimant’s entitlement for enhancement of compensation in the appeal. There is no dispute that, in this appeal of Insurer, the respondent/claimant has first time urged for grant of enhancement without filing cross-objection or cross appeal. According to the Insurer, the said course is not permissible. In this regard, the appellant/Insurer relied on the Judgment of the Hon’ble Supreme Court in the case of Shivawwa and Another vs. The Branch Manager, National India Insurance Co. Ltd. and Another, 2019 (1) Mh. L.J. 1. In the said case, the Hon’ble Supreme Court has negatived the last minute urge of the claimants for enhancement of compensation amount. The said case is distinguishable on facts. In the said case, the Tribunal has saddled the liability on Insurer. In first appeal of Insurer, the High Court has exonerated the Insurance Company. The claimant had approached to the Supreme Court wherein the argument was advanced for the first time for enhancement of compensation. In such peculiar facts, the prayer for enhancement first time raised in the Supreme Court was not considered. It is not the case in the matter at hand. 24. Learned Counsel for the respondent would submit that this being beneficial legislation, the Tribunal is bound to award “just compensation.” There is no embargo in enhancing the compensation even in first appeal. In this regard, he relied on the Judgment of Hon’ble Supreme Court in the case of the APSRTC by its General Manager and Another vs. M. Ramadevi and Others, 2008 ACJ 930 . In the said case, the Hon’ble Apex Court in clear terms ruled that, in absence of appeal or cross objection of claimant, the High Court can enhance the compensation even in the appeal. In the said case, the Hon’ble Apex Court in clear terms ruled that, in absence of appeal or cross objection of claimant, the High Court can enhance the compensation even in the appeal. The Hon’ble Supreme Court has considered its earlier decision in the case of Nagappa vs. Gurdial Singh and Others, (2003) 2 SCC 274 and ruled that there is no embargo on the Tribunal or even on the High Court in awarding compensation exceeding the amount claimed, though no appeal was filed. In view of said decision, no further debate is required on this issue. In M. V. Act, there is no restriction on the Tribunal, but the central theme is to award “just compensation” to adequately reimburse victims of road accident. Therefore, though the respondents/claimants had not filed appeal or cross-objection, the prayer for enhancement in First Appeal can be considered on its own merits. 25. In view of above, one should turn to the facts of the case to see whether the claimants are entitled for enhancement, as prayed. Coming to the aspect of compensation, the Tribunal has awarded Rs. 3,00,000/- towards permanent disability and Rs. 50,000/- or medical expenses i.e. total Rs. 3,50,000/-. The respondent would submit that the minor victim is entitled for enhanced compensation on account of permanent disability. In this regard, the respondent took me through the Apex Court Judgment in the case of Kumari Kiran, through her father Harinarayan vs. Sajjan Singh and Others, (2015) 1 SCC 539 . In the said case, it is ruled that, in case of a child, while assessing the non-pecuniary damages, the Tribunal shall consider the damages for mental and physical shock, pain and suffering, loss of amenities in life, damages on account of inconvenience, hardship, discomfort, disappointment, frustration etc. Moreso, the child’s notional income cannot be ascertained as per the structural formula like non-earning individual. In said case, the compensation was assessed on the basis of percentage of disablement of whole body. 26. Reverting to the facts, claimant has pleaded about sustaining permanent disablement in concerned accident. The claimant has examined Medical Officer who stated in evidence that on examination he found a post operative case of crush injury to right leg with non-union fracture of bones on right leg. Doctor has assessed disability to the extent of 76%. 26. Reverting to the facts, claimant has pleaded about sustaining permanent disablement in concerned accident. The claimant has examined Medical Officer who stated in evidence that on examination he found a post operative case of crush injury to right leg with non-union fracture of bones on right leg. Doctor has assessed disability to the extent of 76%. The appellant has challenged the evidence of Medical Officer by stating that the percentage of disability is shown at higher side. The claimant filed his evidence after 13 years from the accident stating 45% permanent disability. Notably after 13 years of accident there is no possibility to increase percentage of disability thereafter. On such background, it is difficult to accept the evidence of Medical Officer as it stands. Neither medical treatment papers nor discharge card has been produced. The Medical Officer has not brought x-ray plates of the patient. It is not clarified whether the percentage of disablement was of whole body or of a particular limb. Taking into account all these factors, amount of Rs. 3,00,000/- awarded by Tribunal towards permanent disablement is just and proper. 27. The Tribunal has awarded Rs. 50,000/- on account of medical expenses. However, there was no addition on account of other non-pecuniary heads namely-special diet, attendant charges and conveyance. Considering the plight of small child, her requirements during the period of hospitalization, I deem it appropriate to award further amount of Rs. 50,000/- under head of attendant charges, conveyance and special diet. Accordingly, the claimant is entitled for compensation as follows:- 1. Permanent disablement, pain and suffering Rs. 3,00,000/- 2. Medical expenses Rs. 50,000/- 3. Attendance charges, conveyance charges and special diet Rs. 50,000/- Total Rs. 4,00,000/- 28. The respondent/claimant pointed out that the Tribunal has awarded interest from 24.9.2015 which is apparently unjust. Perusal of the impugned Judgment reveals that respondent no. 3 (truck owner) was impleaded as a party on 24.9.2015 and therefore, the Tribunal has postponed award of interest from that date. I do not find any logic in postponing the date to commence interest. It goes without saying that, in Claim Petitions, an amount of compensation shall carry interest from the date of petition unless intentional delay on the part of the claimant is shown. In above part of Judgment, I have upheld the joint and several liability of both tort feasors. Therefore, even if respondent no. It goes without saying that, in Claim Petitions, an amount of compensation shall carry interest from the date of petition unless intentional delay on the part of the claimant is shown. In above part of Judgment, I have upheld the joint and several liability of both tort feasors. Therefore, even if respondent no. 3 was not party till 24.9.2015, still the claimants could have recovered the amount from remaining wrong doers from the date of filing petition. Section 171 of the Motor Vehicles Act does not mandate awarding interest from a particular date. This means that judicial discretion is left to the Tribunal. Therefore, the Tribunal should award interest from the date of petition, unless there are circumstances, suggesting protraction on the part of the claimant. In the circumstances, the part of impugned order of postponing date of commencement of interest needs to be corrected. The interest shall run on assessed compensation from the date of petition i.e. from 14.10.2004. 29. In nutshell, the appellant failed to satisfy that liability was to be apportioned in between tort feasors. it is held that the respondent/claimant is entitled for total compensation of Rs. 4,00,000/- along with interest at the rate specified by the Tribunal from the date of petition till realization of the full amount. The impugned judgment requires interference to that extent, which is done accordingly. The First Appeal is allowed in above terms with no order as to costs. 30. The appellant/insurance company is directed to deposit the balance amount within a period of four weeks from today. The respondent/claimant is at liberty to withdraw the entire amount along with accrued interest.