Bhagvat Jaiswal v. Jagjeet Singh

(Proceedings through video conferencing) NAFR HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 805 of 2015 • Bhagvat Jaiswal, S/o Late Ghasiyaram Jaiswal, aged about 54 years, R/o village Birkoni, Thana Hirri, District Bilaspur (CG) ---- Appellant (Claimant)

Versus

1. Jagjeet Singh, S/o Preetam Singh, aged about 50 years, R/o In front of Banki Lambi Chal, PS Banki Mongra, Tahsil Kataghora, District Korba (CG) (Driver)

2. Mahesh Yadav, S/o Vishnu Dev, R/o Ward No.46, Quarter No.MQL/2, Balgi Project, PS-Banki Mongra, Tahsil Kataghora, Dist Korba (CG) (Owner)

3. Branch Manager, The Oriental Insurance Company Limited, Regional Office- 1st Floor, Rama Trade Centre, In front of Rajeev Plaza, Old Bus Stand, Bilaspur, Tahsil & District Bilaspur (CG) (Insurance Company) ---- Respondents For Appellants :

Shri Sameer Singh, Advocate For Respondent No.3 :

Smt. Chitra Shrivastava, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 18/8/2021

1. Claimant/appellant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for brevity 'the Act of 1988') challenging the award dated 10.11.2014 passed by the learned 7th Additional Motor Accident Claims Tribunal, Bilaspur in Claim Case No.214/2014 thereby allowed claim application in part; awarded Rs.75,000/- as compensation to claimant in an injury case along with interest @ 9% p.a., after deducting 50% of total calculated amount of compensation towards contributory negligence on the part of driver of vehicle in which claimant was travelling.

2. Facts of the case, in nutshell, are that on 10.10.2010 claimantappellant along with other villagers had gone to Chandrahasini Temple, Chandarpur on Tata Magic vehicle bearing registration number CG10-F-9761 for offering prayer. While returning from Chandarpur, when they reached in front of High Court building located on Bilaspur-Raipur Highway, one truck bearing registration number CG12-C-2467 (for short 'offending vehicle'), driven by non-applicant No.1 rashly and negligently, dashed Tata Magic and dragged it about 50 mts. In the aforementioned accident, claimant suffered fracture of right wrist, neck & four ribs, grievous injuries on her eye and head. He was immediately taken to CIMS Hospital, Bilaspur for treatment from where he was shifted to Sanjeevani Hospital and Research Centre, Bilaspur where he took treatment as inpatient from 11.10.2010 to 1.11.2010. Incident was reported to concerned police station based on which crime bearing No.331/10 was registered against non-applicant No.1-driver.

3. Claimant-appellant filed an application under Section 166 of the Act of 1988 claiming total amount of Rs.3,95,000/- as compensation on different heads pleading therein that on account of motor accidental injuries suffered by him, he has become permanently disabled.

4. Non-applicant No.1 & 2 filed reply to claim application denying the facts pleaded therein. It was further pleaded that nonapplicant No.1 was possessing valid and effective driving license on the date of accident; there was valid permit and

fitness certificate in favour of offending vehicle. The offending vehicle was insured with non-applicant No.3- Insurance Company, as such, liability to pay amount of compensation, if awarded any, would be of non-applicant Insurance Company.

5. Non-applicant No.3-Insurance Company also submitted its reply to claim application and denied the facts pleaded therein. It was further pleaded that there was contributory negligence on the part of driver of Tata Magic in which injured claimant was travelling as accident was between two motor vehicles. Amount of compensation claimed is highly exaggerated. Vehicle on which claimant was travelling was overloaded and its driver was not possessing valid & effective driving license. Driver of offending vehicle was also not possessing valid and effective driving license at the time of accident, as such, there was breach of essential condition of insurance policy. Hence, the insurance company is not liable to indemnify the insured.

6. The Claims Tribunal upon appreciation of pleadings and evidence brought on record by respective parties, allowed claim application in part, calculated total compensation of Rs.1,50,000/- and after deducting 50% towards contributory negligence on the part of driver of vehicle in which claimant was travelling, awarded Rs.75,000/- as compensation.

7. Shri Sameer Singh learned counsel for claimant-appellant would submit that the Claims Tribunal erred in deducting 50% of total compensation towards contributory negligence on the ground that driver of vehicle on which claimant-appellant was

travelling was also contributory negligent to the extent of 50%. He submits that even if driver of vehicle on which appellant was travelling was equally responsible for accident, then also for the occupants of any of the vehicles involved in accident, it would be case of 'composite negligence' and not 'contributory negligence'. Claimant has an option to file claim application against driver, owner and insurer of any one of vehicles or both. Appellant has chosen to file claim against driver,owner and insurer of offending vehicle and for that vehicle the claimant would be a third party, hence there cannot be deduction of any amount from total calculated amount of compensation towards contributory negligence. He places his reliance on decisions of Hon'ble Supreme Court in T.O. Anthony vs. Karvarnan & ors reported in (2008) 3 SCC 748 and Khenyei Vs. New India Assurance Company Limited & others reported in (2015) 9 SCC 273.

He further submits that looking to nature of injuries suffered by claimant, amount of compensation calculated and awarded by the Claims Tribunal is on lower side. The Claims Tribunal has not awarded any amount of compensation towards injuries suffered by claimant-appellant ignoring that he has suffered fracture injury on his right wrist, neck and ribs. The Claims Tribunal awarded only Rs.1,10,000/- towards medical expenses; Rs.10,000/- towards pain and sufferings; Rs.10,000/- towards transportation & special diet; Rs.5,000/- towards attendant and Rs.20,000/- towards loss of income. He submits that considering the entire facts and

circumstances of case, nature of injuries suffered by appellant, amount of compensation be enhanced suitably.

8. On the other hand, Mrs. Chitra Shrivastava, learned counsel for respondent No.3 Insurance Company would submit that the Claims Tribunal taking into consideration date of accident, the fact that claimant-appellant failed to prove his income in accordance with law, assessed his income on notional basis. She further submits that the Claims Tribunal on appreciation of evidence placed on record by respective parties has rightly come to conclusion that there was contributory negligence on the part of driver of both vehicles. Claimant-appellant has not arrayed owner, driver & insurer of vehicle of which he was an occupant, hence the Claims Tribunal was justified in deducting 50% of calculated amount of compensation towards contributory negligence on the part of driver of vehicle in which injured was travelling. She further submits that amount of compensation awarded by the Claims Tribunal is just and proper, which does not call for any interference. 9.

I have heard learned counsel for the parties and perused the record of the Claims Tribunal.

10.

So far as submission of learned counsel for claimant/ appellant with regard to deduction of 50% of calculated amount of compensation towards contributory negligence is concerned, undisputedly claimant-appellant was not driver of Tata Magic, he was an occupant along with others. Principle of contributory negligence will apply for the act of driver of two

vehicles and not for occupants of vehicle. For occupants of vehicle, it would be case of composite negligence and not contributory negligence. Legal representatives of deceased or victim can seek compensation from driver, owner and insurer of any of vehicles or both the vehicles involved in accident. In case of T.O. Anthony (supra) the Hon'ble Supreme Court has considered the issue with regard to contributory negligence and composite negligence and held thus:- "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 it is 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. In case of Khenyei Vs. New India Assurance Company Limited & others reported in (2015) 9 SCC 273 the issue with regard to contributory negligence and composite negligence has come up for consideration and Hon'ble Supreme Court has held thus:- "16.In Pawan Kumar v. Harkishan Dass Mohan Lal19, the decisions in T.O.

been affirmed, and this Court has laid down that where the plaintiff/ claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa20 and also as to joint tortfeasors. This Court has referred to Charlesworth and Percy on Negligence as to cause of action in regard to joint tortfeasors thus: (Machindranath Kernath Kasar20, SCC p.212, para 42) "42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under:- 'Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually....

Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in case of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.'"

11.

From the aforementioned rulings of Hon'ble Supreme Court it is clear that where driver of both vehicles involved in accident are found responsible for accident, there will be contributory negligence for drivers and if owner, driver and insurer of both vehicles involved in the accident are party to proceedings, Tribunal can apportion the compensation in the ratio of their negligence. Claimant-appellant suffered injuries on account of wrong act of driver of both vehicles. For the occupants of any of the vehicles, it will be case of composite negligence and not

of contributory negligence. In case at hand also, claimant was only an occupant of one of the vehicles out of two involved in accident and not driver. Hence, this Court is of the opinion that deduction of 50% of total calculated amount of compensation towards contributory negligence by the Claims Tribunal is not sustainable in law and the same is liable to be set aside. Accordingly, it is hereby set aside. 12.

So far submission with regard to enhancement of amount of compensation awarded by Claims Tribunal is concerned, perusal of record would show that appellant in support of his claim has filed discharge ticket (Ex.A-8) issued by Sanjeevani Hospital & Research Centre, Bilaspur; prescription of Dr. Sandeep Tiwari (Ex.A-9), medical bills (Ex. A-11 to A-46). Perusal of impugned award would show that the Claims Tribunal awarded Rs.1,10,000/- towards medical expenses, Rs.10,000/- towards pain and sufferings, Rs.5,000/- towards special diet & conveyance, Rs.5,000/- towards attendant and Rs.20,000/- towards loss of income and thereby calculated total amount of compensation of Rs.1,50,000/-.

The Claims Tribunal has not awarded any amount of compensation towards grievous injuries overlooking discharge ticket of Sanjeevani Hospital & Research Centre, Bilaspur wherein there is mention about cervical spine injury C56, fracture of quadri paresis and fracture of radius ulna bone. He also suffered injury on his eye. Based on medical bills, the Claims Tribunal awarded total amount of Rs.1,10,000/- towards medical expenses.

expenses itself shows the nature of injuries suffered by appellant, but Claims Tribunal has not awarded any amount towards grievous injuries and thereby committed mistake. 13.

There is pleading and submission of learned counsel for appellant that appellant suffered permanent disability, but neither disability certificate has been placed on record nor the doctor who examined appellant has been examined as witness before the Claims Tribunal. Hence, appellant is entitled for compensation under the head 'grievous injury' only. Looking to nature of injuries i.e. cervical spine injury resulting into quadri paresis fracture apart from injury on other parts of body, I find it appropriate to award Rs.25,000/- to appellant towards grievous injuries, in addition to amount of compensation already awarded by Claims Tribunal. 14.

Looking to the part on which appellant suffered injury i.e. cervical spine, age of appellant on the date of accident, I find it appropriate to award Rs.15,000/- towards pain and sufferings instead of Rs.10,000/- as awarded by Claims Tribunal. Looking to the nature of injury suffered by appellant, a sum of Rs.5,000/- towards loss of amenities and joy in life.

15. For the foregoing reasons, appeal is allowed in part. Now, claimant-appellant shall be entitled for total amount of compensation of Rs.1,85,000/- (110000 + 15000 + 5000+ 5000+ 20000+ 25000 + 5000). This amount of compensation shall carry simple interest @ 9% p.a. from the date of filing of claim application till its realization. Respondents No.1 to 3 are

jointly and severally liable to satisfy the amount of compensation. Rest of the conditions mentioned in impugned award shall remain intact. Any amount already paid to appellant as compensation shall be adjusted from total amount of compensation as calculated above.

Sd/- (Part Prateem Sahu) Judge roshan/-