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2020 DIGILAW 498 (TS)

H. Shivaji Rao v. T. Narsimlu

2020-06-22

K.LAKSHMAN

body2020
JUDGMENT: Assailing the judgment and decree dated 08.03.2006 in O.P. No.115 of 2001 passed by the Motor Accidents Claims Tribunal - cum - II Additional District Judge (Fast track Court), Nizamabad (for short ‘the Tribunal’), appellant - claimant filed the present appeal. 2. Vide the aforesaid judgment, the Tribunal has awarded an amount of Rs.40,000/- (Rupees forty thousand only) towards compensation with proportionate costs and interest @ 7.5% per annum thereon from the date of petition till the date of realization as against the claim of Rs.1,60,000/- (Rupees one lakh and sixty thousand only) made by the appellant. The Tribunal has directed respondent No.1, owner of the Tractor bearing registration No.AP 25T 1516 to deposit the said compensation. However, the claim was dismissed against respondent Nos.2 and 3, owner and insurer of Jeep bearing registration No.AP 25B 7979. 3. It is the specific contention of the appellant that on 23.05.1997 at 7.30 p.m., he was travelling in Jeep bearing registration No.AP 25B 7979 from Banswada towards Gandhari. On the way, when the said Jeep reached in between Gandipet and Sarvapur villages, driven by its driver in a rash and negligent manner, had a head-on-collision with Tractor bearing registration No.AP 25T 1516 coming in opposite direction at high speed. Due to the said collision, the appellant received injuries on head, right eye-brow, nose and left leg. He was taken to Government Hospital, Kamareddy, and got treatment for 3 to 4 days. According to the appellant, he was earning an amount of Rs.6,000/- per month by doing agriculture work and by way of commission from LIC as Agent. On account of injuries, he was unable to attend his work. Respondent No.1 is the owner of the tractor, while respondent No.2 is the owner of jeep insured with respondent No.3, as such, all of them are liable to pay the compensation. 4. The Tribunal on the analysis of the entire evidence, both oral and documentary, awarded an amount of Rs.40,000/- towards compensation mulcting liability only on respondent No.1 while dismissing the claim against respondent Nos.2 and 3. 5. Aggrieved by the said judgment, the appellant preferred the present appeal mainly on two grounds; (i) dismissal of the claim petition against respondent Nos.2 and 3 is illegal; and (ii) seeking enhancement of compensation. 6. Heard Mr. P. Radhive Reddy, learned counsel for the appellant - claimant and Mr. 5. Aggrieved by the said judgment, the appellant preferred the present appeal mainly on two grounds; (i) dismissal of the claim petition against respondent Nos.2 and 3 is illegal; and (ii) seeking enhancement of compensation. 6. Heard Mr. P. Radhive Reddy, learned counsel for the appellant - claimant and Mr. K. Rajendra Prasad, learned counsel for respondent No.3 - Insurer. Despite service of notice on respondent No.2 - owner of the jeep, none appeared. It is relevant to note that despite service of notice, respondent No.1, owner of Tractor, remained absent and, therefore, he was set ex parte before the Tribunal. As per the principle held in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma, 2001 (1) ALT 495 (DB), if the owner of the vehicle set ex parte before the Tribunal, there is no need of sending notice to the owner and there is no need of impleading him in the appeal. 7. It is the specific contention of the learned counsel for the appellant that the Tribunal ought to have considered that the accident had occurred purely due to negligence of the driver of the tractor on account of which, the claimant sustained grievous injuries. He would further contend that the Tribunal erred in dismissing the claim petition against respondent Nos.2 and 3 on the ground that the appellant has not filed any document to show that the tractor was insured with respondent No.3 and that though the appellant has stated that the respondent No.1, owner of the tractor, has insured the same with respondent No.3, no document is filed to prove the same. The Tribunal further held that in the absence of any such evidence, it cannot be said that respondent No.1, owner of the tractor, has insured the same with respondent No.3 and, therefore, respondent No.1 is alone liable to pay compensation and not respondent Nos.2 and 3. 8. On the other hand, supporting the impugned judgment, the learned counsel for respondent No.3 - Insurer of Jeep would contend that the Tractor is not insured with respondent No.3 and, therefore, respondent No.3 is not liable to pay any compensation to the appellant. According to him, the appellant did not file any document to show that the said tractor was covered under policy issued by respondent No.3. There is no evidence, both oral and documentary to prove the same. According to him, the appellant did not file any document to show that the said tractor was covered under policy issued by respondent No.3. There is no evidence, both oral and documentary to prove the same. According to him, the Tribunal has rightly gave a finding dismissing the claim petition against respondent No.3 by holding that it is not liable to pay any compensation to the appellant since the tractor belonging to respondent No.1 is not insured with it. According to him, there is no error in the finding of the Tribunal warranting interference by this Court in the present appeal. 9. As discussed above, it is the specific contention of the appellant - claimant that the accident had occurred due to head-on-collision. The jeep, in which he was travelling, driven by its driver in a rash and negligent manner, dashed the tractor bearing registration No. AP 25T 1516 coming in opposite direction at high speed. Due to the said accident, he sustained injuries. To prove the nature of accident, the appellant has examined himself as PW.1, but he has not examined any eye-witness. It is relevant to note that respondents have also not examined any witness to disprove the same. However, during cross-examination, he has categorically admitted that the tractor and jeep came in opposite direction at the time of accident and he was sitting in the back side seat of the jeep. Lights of the Tractors were visible to him. Both the drivers of tractor and jeep were driving the vehicles in a rash and negligent manner. The accident had occurred due to carelessness attitude of the jeep driver. 10. As stated above, the respondents have not examined any witness and they have not filed any document to disprove the same. The manner of accident was specifically mentioned in Ex.A63 - FIR. In the present case, the appellant did not file charge sheet. On perusal of deposition of PW.1, more particularly, the above said admissions during cross-examination, and also the contents of Ex.A63 - FIR, it can safely be held that the accident was due to rash and negligent driving of the drivers of tractor and jeep. Thus, it is a composite negligence. Admittedly, the accident was due to head-on-collision and both vehicles were coming in opposite direction. Thus, it is a composite negligence. Admittedly, the accident was due to head-on-collision and both vehicles were coming in opposite direction. But, the Tribunal held that the accident had occurred due to rash and negligent driving of the tractor bearing No. AP 25T 1516 relying upon contents of Ex.P63 - FIR. The Tribunal did not consider the deposition of PW.1 and the above said admissions of PW.1 during cross-examination. Therefore, the finding of the Tribunal that the accident was due to rash and negligent driving of the driver of the tractor is contrary to record. According to this Court, the accident was due to rash and negligent driving of drivers of both the vehicles. The learned counsel for the appellant would contend that the Tribunal by considering the said evidence should have fixed liability on respondent Nos.2 and 3, owner and insurer of the jeep also apart from fixing liability on respondent No.1, owner of tractor. Admittedly, the appellant did not make the insurer of the tractor as a party to the claim petition. 11. It is relevant to note that in Khenyei v. New India Assurance Co. Ltd., 2015 ACJ 1441 a Three-Judge bench of the Apex Court while dealing with a case of composite negligence has held in paragraph No.18 thus: “(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.” 12. In T.O. Anthony v. Karvarnan, 2008 ACJ 1165 , the Apex Court while dealing with the words and phrases “composite negligence” and “contributory negligence” held that 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. 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. 13. As per the principle held in the above decisions, the appellant being injured is having choice of proceeding against all or any one of them, and 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 case of composite negligence, the appellant can recover the compensation at his option whole damages from any of them. In the present case, the appellant did not make the Insurer of the tractor in the array of respondents either before the Tribunal or this Court. In case of composite negligence, the appellant can recover the compensation at his option whole damages from any of them. In the present case, the appellant did not make the Insurer of the tractor in the array of respondents either before the Tribunal or this Court. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the Court/Tribunal, in any case one joint tortfeasor can recover the amount from the other in the execution proceedings. It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award. 14. As discussed above, the accident had occurred due to negligence of drivers of both vehicles and it is a composite negligence. Due to the said accident, the appellant sustained grievous injuries in the manner stated above. In case of composite negligence, the choice is for the appellant - claimant to claim compensation either against insurer of jeep or tractor. The Insurer has to pay the compensation to the injured and if it so desires, it has to recover the same from the insurer of the other vehicle. In the case on hand, the appellant claimed the compensation from respondent No1, owner of Tractor, respondent Nos.2 and 3, owner and insurer of the jeep. Therefore, respondent Nos.1 to 3 are liable to pay compensation to the appellant for the injuries sustained by him in the accident. Respondent Nos.2 and 3 being owner and insurer of the jeep are liable to pay compensation to the appellant. It is for respondent Nos.2 and 3 to recover the compensation paid by them to the appellant from respondent No.1, owner of tractor and its insurer. 15. Respondent Nos.2 and 3 being owner and insurer of the jeep are liable to pay compensation to the appellant. It is for respondent Nos.2 and 3 to recover the compensation paid by them to the appellant from respondent No.1, owner of tractor and its insurer. 15. The learned counsel for respondent No.3 - insurer would contend that if at all it has to recover the compensation paid by it from the insurer of the tractor, the appellant has not furnished any details of the insurer of the tractor and thereby it is difficult to recover the same from the insurer of the tractor. According to him, compensation which respondent No.3 has to pay is tax payers’ money and, therefore, respondent No.3 cannot be directed to pay the entire compensation. On the other hand, the learned counsel for the appellant would contend that the Motor Vehicles Act is a beneficial legislation and benefit should always be given to the claimant. 16. As discussed above, the Hon’ble Apex Court has categorically held that it is the choice of injured to claim compensation from one or both vehicles involved in the accident. In view of the same, respondent No.2 and 3 are also liable to pay compensation. Therefore, the finding of the Tribunal that respondent Nos.2 and 3 are not liable to pay compensation is erroneous and contrary to record and the principle held by the Hon’ble Apex Court in the aforesaid decisions. 17. Now, coming to the quantum of compensation, the Tribunal has awarded an amount of Rs.25,000/- towards pain and suffering for the injuries sustained by the appellant; an amount of Rs.5,000/- towards medicines; Rs.5,000/- towards treatment expenses; Rs.3,000/- towards extra nourishment and Rs.2,000/- towards transportation making a total of Rs.40,000/-. As contended by the appellant, he received grievous injuries i.e., fracture of nasal bone, injuries to right eye, left leg thigh, head and on other parts of the body. He was shifted to Government Hospital, Kamareddy and was treated for 3 to 4 days and, thereafter, he had taken further treatment in the hospital of Dr. T. Narsing Rao. The appellant had also undergone nose surgery under Dr. Swaroop Kumar, ENT Specialty. He was shifted to Government Hospital, Kamareddy and was treated for 3 to 4 days and, thereafter, he had taken further treatment in the hospital of Dr. T. Narsing Rao. The appellant had also undergone nose surgery under Dr. Swaroop Kumar, ENT Specialty. However, in support of the injuries sustained by the appellant, he has filed Ex.A64 - wound certificate issued by the Deputy Civil Surgeon, Government Hospital, Kamareddy, wherein it shows that appellant sustained one grievous injury and three simple injuries. However, he has not examined the doctor, who issued Ex.A64 - wound certificate and the doctors, who treated him. However, considering the nature of injuries i.e., fracture of nasal bone, injuries to right eye, left leg thigh, head and on other parts of the body, the appellant is entitled to an amount of Rs.25,000/- towards grievous injury and a sum of Rs.5,000/- each for three simple injuries, making a total of Rs.40,000/- and the same is awarded. According to this Court, the said amount is just and reasonable. The Tribunal has awarded a sum of Rs.3,000/- towards extra nourishment, but the same is very meager. Considering the nature of injuries and the treatment taken by the appellant, according to this Court, the appellant is entitled to Rs.20,000/- towards extra nourishment as against the said amount of Rs.3,000/- awarded by the Tribunal. The Tribunal has also awarded a sum of Rs.5,000/- each towards medical expenses and medical treatment. The same is reasonable and therefore the same shall be maintained. 18. As discussed supra, the appellant was doing agricultural work apart from receiving commission as LIC Agent. Therefore, an amount of Rs.6,000/- is awarded @ Rs.3,000/- per month for two months, towards loss of temporary earnings. He is also entitled to an amount of Rs.4,000/- @ Rs.2,000/- per month for two months towards attendant charges. The Tribunal has also awarded a sum of Rs.2,000/- towards transportation charges, but the same is also on lower side in view of the fact that the appellant has taken treatment in different hospitals. Therefore, the same is enhanced to Rs.5,000/- under the said head. Further, an amount of Rs.1,000/- is awarded towards damages to clothes. 19. Thus, in all, the appellant is entitled to Rs.86,000/- towards compensation as against the amount of Rs.40,000/- awarded by the Tribunal, under the following heads. i. One Grievous Injury Rs. 25,000-00 ii. Therefore, the same is enhanced to Rs.5,000/- under the said head. Further, an amount of Rs.1,000/- is awarded towards damages to clothes. 19. Thus, in all, the appellant is entitled to Rs.86,000/- towards compensation as against the amount of Rs.40,000/- awarded by the Tribunal, under the following heads. i. One Grievous Injury Rs. 25,000-00 ii. Three Simple injuries @ Rs.5,000/- each Rs. 15,000-00 iii. Extra nourishment Rs. 20,000-00 iv. Medical expenses Rs. 5,000-00 v. Treatment charges Rs. 5,000-00 vi. Attendant charges Rs. 4,000-00 vii. Transportation Rs. 5,000-00 viii. Loss of temporary earnings Rs. 6,000-00 ix. Damages to clothing Rs. 1,000-00 Total Rs. 86,000-00 20. As far as rate of interest is concerned, the Tribunal has awarded the interest at 7.5% per annum. Since the said rate of interest is reasonable, the same is confirmed, and even maintains on the enhanced compensation. 21. In the result, the appeal is allowed in part. Accordingly, judgment and decree dated 08.03.2006 in O.P. No.115 of 2001 passed by the Tribunal are modified to the extent indicated above enhancing the compensation to Rs.86,000/- (Rupees eighty six thousand only) from Rs.40,000/- (Rupees forty thousand only) awarded by the Tribunal with interest at the rate of 7.5% per annum thereon from the date of petition till realization against respondent Nos.1 to 3 and insurer of tractor jointly and severally. The respondent No.3 - Insurer of the jeep is directed to deposit the above said entire amount with interest and costs within one month from the date of receipt of certified copy of this judgment. It can recover the same from respondent No.1 and its Insurer in accordance with law. The finding of the Tribunal dismissing the claim petition against respondent Nos.2 and 3 is hereby set aside. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.