Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 774 (KAR)

Nurzath D/o Abdul Hameed v. Bheemrao

2019-04-01

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimant being dissatisfied with the judgment and award dated 28.03.2013 passed in MVC No. 358/2010 by the II Additional Senior Civil Judge & MACT, Gulbarga has filed this appeal. 2. It is the case of the minor petitioner before the tribunal that on 16.05.2008 when the petitioner and her relatives were travelling in the Jeep bearing Regn. No. KA-36-A-5612 near Bhankur village cross, Anand Dhaba road, Shahabad, the driver of lorry bearing Regn. No. KA-32-A-1734 drove the same from the opposite direction in a rash and negligent manner and dashed against the Jeep causing accident. On account of the said accident, the petitioner sustained grievous injuries on her left humerus, left shoulder and the other parts of the body. She was admitted in Primary Health Center, Shahabad and later shifted to Government General Hospital, Gulbarga where she has taken treatment as in patient from 17.05.2008 to 26.05.2008 and has undergone surgery. Prior to the accident, the petitioner was studying in 5th standard in International School and was a brilliant student. She has suffered permanent disablement due to the injuries sustained in the accident, which is coming in the way of her prospects. Therefore, she claimed compensation of Rs. 10,15,000/- against respondent No. 1 owner and respondent No. 2 the insurer of the offending lorry. 3. In spite of service of notice respondent No. 1 remained absent and he was placed ex-parte. Respondent No. 2 appeared through his counsel before the tribunal and filed written statement. He has denied that the accident occurred due to the rash and negligent driving of the lorry driver. He has further stated that the driver of the Jeep was carrying more than 20 passengers and due to over loading of the passengers, he lost control over the vehicle and thereby he is equally contributed for the accident. The petition is bad for non-joinder of necessary parties. He has denied the injuries and medical treatment of the petitioner. Further that the driver of the lorry was not holding valid and effective driving licence. Therefore, the petition against him be dismissed. 4. On the basis of the pleadings, the tribunal framed issues. 5. In order to prove the claim of the petitioner, her next friend father was examined as PW-1 and doctor was examined as PW-2 and she has got marked 15 documents. Therefore, the petition against him be dismissed. 4. On the basis of the pleadings, the tribunal framed issues. 5. In order to prove the claim of the petitioner, her next friend father was examined as PW-1 and doctor was examined as PW-2 and she has got marked 15 documents. Respondent No. 2 has got examined his witness as RW-1 and got marked 4 documents. The learned Member of the tribunal after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 57,400/- fixing the liability in the ratio of 80:20 and directed respondent No. 2 the insurer to satisfy 80% of the compensation awarded to the petitioner as the owner and insurer of the other vehicle are not parties in the claim petition. 6. Claimant being aggrieved by the quantum of compensation and also apportionment of negligence in the ratio of 80:20 between the driver of the lorry and jeep has filed this appeal. 7. The learned counsel for the appellant-claimant submitted that the tribunal has erroneously fixed the liability on respondents and the driver of the jeep in the ratio of 80:20 which needs to be set aside and that the entire liability may be fixed against respondent No. 2 the insurer of the lorry. The learned counsel further submitted that the tribunal has awarded very meager amount towards pain and suffering, loss of amenities and other heads and the same may be enhanced. 8. Per contra, the learned counsel for the respondent No. 2 supported the impugned judgment and award and submitted that fixing the liability in the ratio of 80:20 against both the drivers is proper and that the claimant can recover the compensation amount from any one of the joint tort-feasors. 9. Heard the learned counsel for the parties. After having heard, the learned counsel for the parties, the following questions arise for consideration before this Court. (1) Whether the claimant-appellant has made out grounds to fix the entire liability against respondent No. 2? (2) Whether the claimant has made out grounds for enhancement in the compensation? 10. Point No. 1 - The appellant-claimant has urged in the memorandum of appeal that the tribunal has erroneously fixed the liability to pay the compensation in the ratio of 80:20 between the driver of the lorry and the driver of the jeep which needs to be set aside. 10. Point No. 1 - The appellant-claimant has urged in the memorandum of appeal that the tribunal has erroneously fixed the liability to pay the compensation in the ratio of 80:20 between the driver of the lorry and the driver of the jeep which needs to be set aside. The tribunal has considered the entire material on record. Respondent No. 2 has contended that there is a contributory negligence on the part of the driver of the jeep in causing the accident. Respondent No. 2 has got examined his witness as RW-1 and has got produced certified copy of judgment in C.C. No. 183/2008 at Ex.R4, this document goes to show that the witness examined in the criminal case have deposed clearly that 20 passengers were being carried in the said jeep and out of them 4 passengers died in the accident and 16 passengers sustained injuries. This itself goes to show that the driver of the jeep was negligent and he has also contributed towards the accident. Considering the said material, the tribunal has fixed the liability of the driver of the jeep at 20% and the liability on the part of the driver of the lorry at 80%. Therefore, the finding recorded by the tribunal in this regard cannot be held as illegal. However, the apprehension of the claimant that since the owner and insurer of the jeep were not impleaded as parties and therefore, she cannot recover 20% of the compensation apportioned against the owner and insurer of the jeep is not correct. The claimant can recover the entire amount of compensation from any one of the joint tort-feasors and the insurer who satisfies the entire award has a right to recover the part of the compensation from the other insurer or the owner of the vehicle. In this regard, the judgment of Hon'ble Supreme Court of India in the case of Khenyei vs. New India Assurance Co. Ltd. and Others in Civil Appeal No. 4244/2015 decided on 07.05.2015 is very much useful in the case. The Hon'ble Supreme Court of India has laid down the following principles in the said case: "(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them. The Hon'ble Supreme Court of India has laid down the following principles in the said case: "(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them. (ii) There can not be apportionment of the liability of joint tort-feasors, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of Law, there is no necessity to apportion the inter se liability of joint tort-feasors." 11. Therefore, the claimant herein is entitled to recover the entire compensation amount from any one of the joint tort-feasor and the person who satisfy the entire award has got right to recover the compensation apportioned to the share of the other joint tort-feasor. In the present case, the claimant can proceed to recover entire compensation amount from respondent No. 2 the Bajaj Allianz General Insurance Co. Ltd. and in tern the said insurance company has got every right to recover 20% of the compensation amount from the owner/insurer of jeep bearing Regn. No. KA-36-A-5612. Under these circumstances, this point is answered accordingly. 12. Point No. 2 - The claimant injured is a minor girl aged about 10 years, she had sustained fracture of distal shaft to left humerus as per the wound certificate produced at Ex.P6. PW-2 Dr. Ramakanth Kulkarni examined the claimant and has issued disability certificate as per Ex.P11 assessing the disability of the petitioner at 40% of the upper limb and the percentage of disability to the whole body at 20% to 25%. The tribunal has considered the permanent disability of the petitioner at 10% of the whole body and accordingly has awarded Rs. 22,500/- towards loss of future income. Since the petitioner-claimant was a minor and non earning member, the tribunal proceeded to consider her annual income as Rs. 15,000/- as provided under schedule-II of the M.V. Act and applied the multiplier 15 and accordingly awarded 10% towards the loss of future income at Rs. 22,500/-. There is no error committed by the tribunal in this regard. The tribunal has awarded Rs. 20,000/- towards pain and shock and suffering. 15,000/- as provided under schedule-II of the M.V. Act and applied the multiplier 15 and accordingly awarded 10% towards the loss of future income at Rs. 22,500/-. There is no error committed by the tribunal in this regard. The tribunal has awarded Rs. 20,000/- towards pain and shock and suffering. The claimant is a minor girl, she has sustained fracture of distal shaft of left humerus and she has undergone treatment as in patient from 17.05.2008 to 26.05.2008 and she is also suffering from permanent disability of 10% of the whole body. The learned counsel for the claimant relying on the decision in the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Company Limited and Another, (2014) AIR SC 736 submitted that some reasonable amount may be awarded towards pain and suffering. In the said case, the Hon'ble Supreme Court has held that where the injured is a minor and the disability is above 10% and up to 30% a sum of Rs. 3,00,000/- is being awarded towards pain and suffering, inconvenience, discomfort, loss of amenities on account of permanent disability. In the present case, the petitioner is not suffering from permanent disability of more than 10% and as such the compensation awarded in the said case cannot be applied in the present case. Under these circumstances, compensation towards pain and suffering is awarded at Rs. 50,000/- as against Rs. 20,000/- awarded by the tribunal. Further the tribunal has awarded Rs. 10,000/- towards loss of amenities of life, the same is enhanced to Rs. 35,000/- attendant's charges extra nourishment and conveyance is awarded at Rs. 10,000/- as against Rs. 6,250/- awarded by the tribunal. Rs. 3,000/- awarded by the tribunal towards medical expenses is retained in the absence of any documents. So also Rs. 10,000/- awarded towards future medical expenses is affirmed. Thereby, the claimant is entitled for total compensation of Rs. 1,30,500/- as against compensation awarded by the tribunal at Rs. 71,750/-. Thus, the claimant is entitled for enhanced compensation of Rs. 58,750/- with interest at 6% per annum from the date of petition till realization. The quantum of apportionment of 80% of the liability against the respondent No. 2 herein for the purpose of satisfying the award does not arise. The claimant is entitled to recover the entire compensation amount with interest from respondent No. 2 Bajaj Allianz General Insurance Co. 58,750/- with interest at 6% per annum from the date of petition till realization. The quantum of apportionment of 80% of the liability against the respondent No. 2 herein for the purpose of satisfying the award does not arise. The claimant is entitled to recover the entire compensation amount with interest from respondent No. 2 Bajaj Allianz General Insurance Co. Ltd. which in term as a right to recover 20% of the compensation amount from the owner/insurer of the jeep bearing Regn. No. KA-36-A- 5612. In the result, I proceed to pass the following: ORDER The appeal is partly allowed. The appellant is entitled for enhanced compensation of Rs. 58,750/- together with interest at 6% per annum from the date of petition till realization. The claimant is entitled to recover the entire compensation amount with interest from any one of the joint tort-feasors.