Delhi High Court
Tushar Goel vs Mukesh Kumar & Ors. on 21 May, 2012
Author: G.P. Mittal
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st May, 2012
+ MAC. APP No.46/2009
TUSHAR GOEL ..... Appellant
Through: Mr. Rakesh Tiku, Sr. Advocate
with Ms. Manjusha Wadhwa,
Advocate
Versus
MUKESH KUMAR & ORS. ..... Respondents
Through: Mr. K.L. Nandwani, Advocate
for the Respondent No.3
Insurance Company
WITH
+ MAC. APP No.65/2009
SHEFALI GOEL ..... Appellant
Through: Mr. Rakesh Tiku, Sr. Advocate
with Ms. Manjusha Wadhwa,
Advocate
Versus
MUKESH KUMAR & ORS. ..... Respondents
Through: Mr. K.L. Nandwani, Advocate
for the Respondent No.3
Insurance Company
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals are for enhancement of compensation
awarded in favour of Appellant Tushar Goel (MAC. APP.
No.46/2009) and Appellant Shefali Goel (MAC. APP.
No.65/2009) of `7,000/- and `50,000/- respectively for having
suffered injuries in an accident which occurred on 01.06.2002.
2. The Motor Accident Claims Tribunal (the Claims Tribunal) by
an impugned judgment found that there was contributory
negligence on the part of Rakesh Goel, driver of the Car
No.DL7C-A-2877 and the Respondent No.1 driver of Car
No.HR 02-H-9912 in the ratio of 50:50. Hence, while awarding
a compensation of `7,000/- in favour of the Appellant Tushar
Goel and `50,000/- in favour of the Appellant Shefali Goel, the
Respondents were held liable to pay only 50% of the
compensation.
3. In MAC. APP. No.64/2009 titled Rakesh Goel v. Mukesh
Kumar & Ors. decided by a separate order today, I have already
held that the judgment of the Claims Tribunal, Kurukshetra
dated 26.04.2005 on the finding of negligence was res judicata.
The negligence in the said judgment was apportioned as 30%
against Rakesh Goel, driver of Car No.DL7C-A-2877 and 70%
against the First Respondent driver of car No.HR 02-H-9912.
The said finding does not affect the Respondent's liability to
pay the compensation as it was not a case of contributory
negligence but a case of composite negligence. The fact that
one of the tortfeasors i.e. driver of the Car No. DL7C-A-2877
was the Appellant's father/husband would not make any
difference.
4. In Bherlal v. Kamal Singh, (2005) 2 TN MAC 39 (Mad), it was
held by the Madras High Court that in case of composite
negligence a third party travelling in one of the vehicles will not
be guilty of contributory negligence. In T.O. Anthony v.
Karvarnani, (2008) 3 SCC 748, the Supreme Court held as
under: -
"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 wrong doers, it is said
that the person was injured on account of the
composite negligence of those wrong-doers. In
such a case, each wrong doer, is jointly and
severally liable to the injured for payment of the
entire damages and the injured person has 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."
5. Thus, it is a case of composite negligence and the claimant
could have proceeded against either of the tortfeasors.
6. As far as the case of Appellant Tushar Goel is concerned, he
was found to have suffered minor bruises. He was examined by
the doctors at AIIMS (Ex.PW1/39). There was found to be
tenderness on his right thigh. A sum of `1500/- was paid to Dr.
Sunil Garg, a private medical practitioner. Lumpsum
compensation of `7,000/- awarded by the Claims Tribunal in the
circumstances of the case was just and reasonable.
7. Coming to the case of Shefali Goel, it was claimed that she
suffered injuries on her face, chest and left arm. She was
discharged from AIIMS on the same day. She remained
admitted in a private Hospital i.e. Sukhda Nursing Home for
two days. Admittedly, the injuries suffered by her were simple.
The Claims Tribunal dealt with the issue of the award of
compensation to her as under:
"Shefali, injured aged 37 years complains of injuries
head and the face, chest and left arm. She is examined
as PW2. In her affidavit, she submits that she was
discharged from the AIIMS on the same day and she
took private treatment thereafter. She was treated at
Sukhda Hospital. In the cross-examination, she admits
that she was admitted for two days in Sukhda Nursing
Home. She denies a suggestion that she is not engaged
in organizing summer camps for the children and that
she is not earning. MLC of Shefali Goel, is produced at
Ex.PW2/3 by PW6. The same shows that the patient
was treated for lacerated wound above the elbow and
two abrasions in the face. These are all simple injuries.
Stitches were removed on 07.06.2002, as per Ex.PW2/5.
Ex.PW2/6 also does not show that the injuries are
grievous in nature which is issued by Sukhda Hospital.
Exs.PW2/7 to 2/10 are for a sum of `10,000/- towards
medical expenses of Sukhda Hospital. Ex.PW2/10
certificate of Dr. Sunil Garg, regarding the
professional expenses of `4,500/- is not proved on
record. In the result, considering the nature of injuries
as simple in nature, a lumpsum compensation of
`50,000/- is allowed on all the allowable heads of
compensation. Considering the blameworthiness of
respondents, the respondents shall pay 50% of the
above sum i.e. a sum of `25,000/-(Rupees Twenty Five
Thousand Only)."
8. The overall compensation of `50,000/- for the injuries suffered
by her even if she was prevented from attending to her work for
15 days was just and reasonable. It does not call for any
interference.
9. Since I have already held that it was a case of composite
negligence, the Respondents No.1 to 3 are liable to pay the
entire compensation. The Respondent No.3 United India
Insurance Co. Ltd. being the insurer of the offending vehicle is
directed to pay the balance compensation along with interest as
awarded by the Claims Tribunal by depositing the same in the
name of the Appellants in UCO Bank, Delhi High Court Branch
within six weeks.
10. The compensation so deposited shall be released in favour of
the Appellants.
11. The Appeals are allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 21, 2012
pst
