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2020 DIGILAW 210 (KAR)

Akkayyamma v. K. Sadashiva

2020-01-23

H.T.NARENDRA PRASAD

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JUDGMENT : H.T. NARENDRA PRASAD, J. 1. These appeals are filed by the claimants challenging the judgment and award dated 9.4.2015 passed by the MACT & V Addl. Small Causes Judge & XXIV ACMM, Mayo Hall Unit, Bangalore in MVC Nos. 1492/2011 and 2621/2014. 2. Brief facts of the case: On 15.3.2014 at about 5.15 p.m. when the claimants were traveling in an auto rickshaw bearing Registration No.KA-04-C-3974 on Kolar-Bangalore NH4 from Hoskote towards U Cross and crossed the NH-4 and entered the service road, at that time, the driver of the car bearing Registration No.KA-07-M-4167 came in a rash and negligent manner and dashed against the auto rickshaw. As a result, the auto rickshaw got turtled twice and the claimants sustained injuries and immediately they were shifted to the Ashwini hospital and later shifted Chinmaya Mission Hospital. After recovering from injuries, they filed separate claim petitions before the Tribunal. In order to support their case, they examined themselves as PWs-1 and 2, and Dr.Malthesh, as PW-3, and submitted 28 documents. On the other hand, the Insurance Company has not examined the witnesses but produced 1 document. After appreciation of the evidence, the Tribunal has held that the accident occurred due to contributory negligence at the rate of 25% on the part of driver of the autorickshaw and 75% on the part of the driver of the car and granted compensation of Rs.2,47,650/- in MVC 1492/2014 and Rs. 1,86,675/- in MVC 2621/2014 with interest at 6% p.a. Since insurer and insured of the autorickshaw are not made as parties, the Tribunal directed the Insurance Company to pay 75% of the compensation to the claimants. Being aggrieved by the same, the present appeals are filed. 3. The learned counsel for the claimants has raised the following contentions: Firstly, the Tribunal has given a finding that the accident occurred due to contributory negligence at the rate of 25% on the part of driver of the auto rickshaw and 75% on the part of the driver of the car. Since insurer and insured of the auto rickshaw are not made as parties, the Tribunal is not justified in directing the Insurance Company to pay only 75% of the compensation. He further contends that the claimants are at liberty to recover the compensation amount against both or any one of the tortfeasors. Since insurer and insured of the auto rickshaw are not made as parties, the Tribunal is not justified in directing the Insurance Company to pay only 75% of the compensation. He further contends that the claimants are at liberty to recover the compensation amount against both or any one of the tortfeasors. In respect of his contention, he has relied upon the decision of Hon'ble Supreme Court in the case of Pawan Kumar and Another vs. Harkishan Dass Mohan Lal and Others, (2014) 3 SCC 590 . Secondly, the claimants claim that they were earning Rs.9,000/- per month by doing coolie work. But, the Tribunal has taken the income of the claimants at Rs.3,000/- per month, which is on the lower side. Thirdly, the claimants have sustained grievous injuries in the accident and they have to suffer the disability stated by the doctor throughout their lifetime. The compensation awarded by the Tribunal under the head 'pain and sufferings' and 'loss of amenities' are on the lower side. Hence, the learned counsel for the claimants prays for allowing the appeal. 4. Per contra, the learned counsel for the Insurance Company has raised the following counter-contentions: Firstly, the Tribunal has held that the drivers of the both vehicles i.e., car and autorickshaw have contributed to the accident at the rate of 75% and 25% respectively and has rightly directed the Insurance Company to pay only 75% of the compensation amount since the insurer and insured of the auto rickshaw is not made as parties. Secondly, even though the claimants claim that they were doing coolie work and earning Rs. 9,000/- per month, but they have not produced any document to establish their income. Therefore, the Tribunal has rightly assessed the income of the claimants notionally. Thirdly, the Tribunal considering the oral and documentary evidence on record has rightly awarded just and reasonable compensation. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeals. 5. Heard the learned counsel for the parties. Perused the records. 6. It is not in dispute that the claimants had sustained injuries in a road traffic accident occurred on 15.3.2014. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeals. 5. Heard the learned counsel for the parties. Perused the records. 6. It is not in dispute that the claimants had sustained injuries in a road traffic accident occurred on 15.3.2014. The Tribunal on the basis of the materials available on record has rightly held that the accident occurred due to contributory negligence at the rate of 25% on the part of driver of the autorickshaw and 75% on the part of the driver of the car. 7. The Hon'ble Apex Court in the case of Pawan Kumar (supra) has held that it is open for the claimant to enforce the award against both or any one of tortfeasors. Paragraphs 7 to 11 of the said decision are relevant and same is extracted hereunder: "7. The distinction between the principles of composite and contributory negligence has been dealt with in Win field & Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:- "WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff's advantage to show that that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. It is greatly to the plaintiff's advantage to show that that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous........." 8. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha and Others (supra). 9. Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted here-inbelow: "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. 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 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. In the present case, neither the driver/owner nor the insurer has filed any appeal or cross objection against the findings of the High Court that both the vehicles were responsible for the accident. In the absence of any challenge to the aforesaid part of the order of the High Court, we ought to proceed in the matter by accepting the said finding of the High Court. From the discussions that have preceded, it is clear that the High Court was not correct in apportioning the liability for the accident between drivers/owners of the two vehicles. 11. From the discussions that have preceded, it is clear that the High Court was not correct in apportioning the liability for the accident between drivers/owners of the two vehicles. 11. We, accordingly, hold that the drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them. The order of the High court dated 5-7-2006 is modified to the extent indicated above and the appeal is allowed." 8. In view of the same, the respondent No.2 Insurance Company is directed to deposit the entire compensation with interest in both the cases with liberty to recover 25% of the compensation with interest from the insured or insurer of the auto rickshaw. IN MVC 1492/2014 (MFA 6439/2015) 9. The claimant-Akkayamma claims that she was doing coolie work and earning Rs.9,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2014, the income should be taken notionally as Rs.8,500/- per month. Therefore, this Court enhances the claimant's income from Rs.3,000/- to Rs.8,500/- per month. As per wound certificate, the claimant-Akkayamma has sustained tenderness with swelling deformity of the lower 1/3rd of the left leg. PW-3, the doctor has deposed in his evidence that the claimant has suffered 30% disability to whole body. The claimant is aged about 40 years at the time of accident, and the multiplier applicable to her age group is 15 instead of 14 applied by the Tribunal. Her income is assessed at Rs.8,500/- per month. PW-3, doctor in his evidence has stated that claimant has suffered disability of 30% to the whole body. Therefore, the 'loss of future income' works out to Rs.4,59,000/- (8,500 x 12 x 15 x 30%) and it is awarded as against Rs.1,51,200/- awarded by the Tribunal. 10. Considering the nature of injuries, compensation of Rs.20,000/- awarded by the Tribunal under the head 'pain and sufferings' is on the lower side and hence, the same is enhanced to Rs.30,000/- 11. 10. Considering the nature of injuries, compensation of Rs.20,000/- awarded by the Tribunal under the head 'pain and sufferings' is on the lower side and hence, the same is enhanced to Rs.30,000/- 11. Considering the nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness, the claimant has to undergo in her life, this Court enhances the compensation from Rs. 10,000/- to Rs.30,000/- under the head of 'loss of amenities'. 12. The claimant was treated as inpatient for a period of 34 days in two different hospitals. Considering the duration of treatment, the compensation of Rs. 13,000/- awarded by the Tribunal under the head 'nourishment, food and conveyance charges' is enhanced to Rs.23,000/-. 13. The claimant-Akkayamma is entitled to receive the following compensation: Compensation under different Heads As awarded by the Tribunal As awarded by this Court Pain and sufferings Rs. 20,000 Rs. 30,000 Medical expenses Rs. 86,000 Rs. 86,000 Food, nourishment, conveyance and attendant charges Rs. 13,000 Rs. 23,000 Future medical expenses Rs. 50,000 Rs. 50,000 Loss of future income Rs. 151,200 Rs. 459,000 Loss of amenities Rs. 10,000 Rs. 30,000 Total Rs. 330,200 Rs. 678,000 IN MVC 2621/2014 (MFA 6440/2015) 14. The claimant-Geetha claims that she was doing coolie work and earning Rs.9,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2014, the income should be taken notionally as Rs.8,500/- per month. Therefore, this Court enhances the claimant's income from Rs.3,000/- to Rs.8,500/- per month. As per wound certificate, the claimant-Akkayamma has sustained tenderness with swelling over the left ankle (lower 1/3rd of the left leg). PW-3, the doctor has deposed in his evidence that the claimant has suffered 25% disability to whole body. The claimant is aged about 20 years at the time of accident, and the multiplier applicable to her age group is 18. Her income is assessed at Rs.8,500/- per month. PW-3, doctor in his evidence has stated that claimant has suffered disability of 25% to the whole body. The claimant is aged about 20 years at the time of accident, and the multiplier applicable to her age group is 18. Her income is assessed at Rs.8,500/- per month. PW-3, doctor in his evidence has stated that claimant has suffered disability of 25% to the whole body. Therefore, the 'loss of future income' works out to Rs.4,59,000/- (8,500 x 12 x 18 x 25%) and it is awarded as against Rs.1,62,000/- awarded by the Tribunal. 15. Considering the nature of injuries, compensation of Rs. 15,000/- awarded by the Tribunal under the head 'pain and sufferings' is on the lower side and hence, the same is enhanced to Rs.30,000/- 16. Considering the nature of injuries and disability stated by the doctor and an amount of discomfort and unhappiness, the claimant has to undergo in her life, this Court enhances the compensation from Rs.5,000/- to Rs.20,000/- under the head of 'loss of amenities'. 17. The claimant was treated as inpatient for a period of 6 days in the hospital. Considering the duration of treatment, the compensation of Rs.4,000/-awarded by the Tribunal under the head 'nourishment, food and conveyance charges' is enhanced to Rs. 14,000/-. 18. The claimant-Geetha is entitled to receive the following compensation: Compensation under different Heads As awarded by the Tribunal As awarded by this Court Pain and sufferings Rs. 15,000 Rs. 30,000 Medical expenses Rs. 22,900 Rs. 22,900 Food, nourishment, conveyance and attendant charges Rs. 4,000 Rs. 14,000 Future medical expenses Rs. 40,000 Rs. 40,000 Loss of future income Rs. 162,000 Rs. 459,000 Loss of amenities Rs. 5,000 Rs. 20,000 Total Rs. 248,900 Rs. 585,900 19. Accordingly, the appeals are allowed in part. The judgment and award of the Tribunal is modified. 20. The respondent No.2-Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment in both the cases. 21. The Insurance Company is at liberty to recover 25% of the compensation from the insured or insurer of the auto rickshaw bearing Registration No. KA-04-C-3974. 22. The amount so deposited shall be released forthwith to the claimants by the learned Tribunal after verifying their identity. No order as to costs.