Karnataka High Court
Sri Jagadish vs The Manager on 18 January, 2022
Bench: M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
MFA NO. 2453 OF 2012(MV)
BETWEEN:
SRI. V. VENKATESH
S/O SRI LATE VENUGOPAL
AGED ABOUT 45 YEARS
R/AT NO.595, HASI KARAGA MANTAPA
MUNESHWARA TEMPLE STREET
KENGERI
BANGALORE - 560 060.
...APPELLANT
(BY SRI. M.B. CHANDRA CHOODA, ADVOCATE)
AND:
1. THE MANAGER
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
K.H. ROAD
SHANTHI NAGAR
BANGALORE - 560 027.
2. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE
SHANKAR NARAYAN BUILDING
M.G. ROAD
BANGALORE - 560 001.
....RESPONDENTS
2
(BY SRI. K. KISHORE KUMAR REDDY, ADVOCATE FOR R2(V/C)
SRI. VIJAY KUMAR, ADVOCATE FOR R1(V/C)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 01.10.2011
PASSED IN MVC NO.1083/2008 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal in MFA.2453/2012 is filed by the
appellant/claimant under Section 173(1) of the Motor
Vehicles Act, 1988 (for short 'M.V. Act') against the
judgment and award dated 01.10.2011 passed in MVC
No.1083/2008 on the file of the Motor Accident Claims
Tribunal, Court of Small Causes, Bengaluru (SCCH-15) (for
short 'the Tribunal').
2. The facts leading upto filing of the present
appeal briefly stated are that, on 03.02.2008, at about
4.30 p.m., the appellant/claimant was traveling in the
Autorikshaw bearing Reg.No.KA-05/B-9967 along with
other passengers towards Kengeri on Bengaluru-Mysuru
road. At that time, a BMTC Bus bearing Reg.No.KA-01/F-
1831 driven by its driver in a rash and negligent manner
came from opposite direction dashed against the said
Autorikshaw. Due to the impact, the appellant/claimant
along with other passengers and the driver of the
Autorikshaw sustained grievous injuries. The
appellant/claimant was taken to BGS Hospital for first aid
treatment and thereafter he was shifted to Victoria
Hospital. The appellant/claimant spent about Rs.50,000/-
towards medical expenses.
3. Thereupon, the claimant filed a claim petition
under Section 166 of the M.V.Act seeking compensation of
`5,00,000/- on the premise that he was aged about 41
years, was working in "Wonderful Garment Factory" and
was drawing a salary of Rs.8,000/- per month. That due
to the accident he sustained injuries in the nature of
fracture of distal shaft of left 5th metacarpal bone and left
radius. Due to the accident which was caused on account
of rash and negligent driving of the offending Bus by its
driver, he is not in a position to carry out his regular
activities as he was doing earlier.
4. Upon service of notice, respondent No.1 did
not appear and was placed exparte. Respondent
No.2/insurance company appeared through its counsel and
filed its statement of objections, admitting the issuance of
policy in respect of the offending Bus. It was contended
that the liability is subject to terms and conditions of the
policy. The mode and manner of accident, the age,
avocation and income of the appellant/claimant as stated
in the claim petition was denied. It was contended that
the accident was not on account of rash and negligent
driving of the offending Bus by its driver, but on the other
hand, the accident was due to negligence on the part of
the driver of the Autorikshaw. Hence, sought for dismissal
of the claim petition.
5. Along with the above claim petition there were
two more claim petitions filed by the driver of the
Autorikshaw and the inmates of the Autorikshaw in
MVC.Nos.1081/2008 and 1082/2008 and the Tribunal had
taken up the aforesaid cases for common disposal.
6. The Tribunal based on the pleadings of the
parties, framed issues and recorded evidence. The
claimant examined himself as PW.3 and driver of the
Autorikshaw as PW.2 and 37 common documents were
marked as Exs.P1 to P37. One J.L.Manjunath, the driver of
the BMTC has been examined RW.1 on behalf of
respondent No.2 and exhibited 2 documents as Exs.R1 and
2.
7. The Tribunal after appreciating the evidence
held that the accident in question had occurred on account
of contributory negligence on the part of driver of the
BMTC as well as the driver of the Autorikshaw and
attributed negligence at the ratio of 50% each and
consequently held that the appellant/claimant is entitled
for compensation of Rs.1,34,000/- under the following
heads:
Pain and suffering `40,000/-
Medical expenses `40,000/-
Loss of earning during `9,000/-
laid up period
Towards disability `25,000/-
Loss of amenities `20,000/-
Total `1,34,000/-
8. Aggrieved by the same, the appellant/claimant
is before this Court seeking enhancement of the
compensation.
9. Heard the learned counsel for the parties and
perused the records.
10. The learned counsel for the appellant/claimant
reiterating the grounds urged in the appeal memorandum
submitted that the Tribunal grossly erred in awarding
meager compensation without taking into consideration
the nature of injuries suffered by the claimant. He further
submits that the Tribunal has failed to appreciate that the
appellant/claimant was traveling as a passenger in the
Auto. Assuming there was negligence on the part of the
driver of the Autorikshaw the same could not have been
attributed on the appellant/claimant. He further submits
that as regards appellant/claimant is concerned, he is a
third party to the accident between the Autorikshaw and
the offending Bus. The appellant/claimant being the
passenger could not have contributed to the accident. The
said accident as regards the appellant/claimant is
concerned is of composite negligence in nature. This
settled position of law that has not been taken into
consideration by the Tribunal. He submits that the
compensation of 50% awarded by the tribunal has
resulting in miscarriage of justice. Hence, sought for
enhancement of compensation by allowing the appeal.
11. On the other hand, learned counsel for the
respondent No.2/insurance company justifying the order
passed by the Tribunal submitted that the
appellant/claimant has deliberately not chosen to array the
owner and insurer of the Autorikshaw and as party
respondent in the petition. Since the Tribunal has already
assessed the contributory negligence at 50%, the
appellant/claimant would entitle for only 50% of the
determined compensation and the respondent No.2-
insurance company cannot be made liable to pay entire
compensation. He submits that no grounds made out by
the appellant/claimant for payment of entire
compensation. Hence, sought for dismissal of the appeal.
12. On thoughtful consideration of the submissions
made by the learned counsel for the parties, the only point
that arises for consideration is:
"Whether the appellant/claimant has
made out a case for enhancement of the
compensation?"
13. The accident in question involving Autorikshaw
and the BMTC Bus is not in dispute. The fact that the
appellant/claimant was a passenger in the Autorikshaw is
also not in dispute. Therefore, as regards the
appellant/claimant is concerned he is a third party to the
accident between Autorikshaw and BMTC Bus, which is in
the nature of composite negligence as regards the
appellant/claimant is concerned. The Tribunal therefore,
as rightly submitted by the learned counsel for the
appellant/claimant, could not have attributed 50%
negligence on the appellant/claimant. The order of the
Tribunal to that extent requires modification.
14. Adverting to the quantum of compensation
awarded to the appellant/claimant, though it is claimed by
the claimant that he was working in the Wonderful
Garments Factory and was drawing a salary of Rs.8,000/-
per month, but he has not produced any documents except
Appointment Letter at Ex.P27. However, the Tribunal has
declined to accept the same as the author of the said
Letter at Ex.P27 has not been examined by the
appellant/claimant. Therefore, the Tribunal has assessed
the notional income of the appellant/claimant at
Rs.4,500/- per month for the reasons assigned at
paragraph 27 of the impugned judgment, this Court is of
the considered opinion that the assessment of notional
income by the Tribunal is just and proper and the same
does not warrant any interference.
15. The appellant/claimant claimed to have
suffered the following injuries as per wound certificate-
Ex.P14.
'1) Fracture of distal shaft of left 5th
metacarpal bone,
2) fracture of left radius, left ulna and
3) Fracture of shaft of 5th Metacarpal'.
16. The Doctor-PW.4, who is an orthopedic
surgeon of Victoria Hospital has assessed the disability of
the appellant/claimant to the extent of 25% to right lower
limb and 9% to the whole body and he has produced
Exs.P32 to P37 namely, case sheets, OPD cards and X-
rays. Considering the said deposition and material
evidence on record, the Tribunal has taken disability at
9%, the same is maintained as just and proper.
17. The Tribunal has awarded Rs.40,000/- towards
pain and sufferings. Considering the nature of injuries, the
said amount is enhanced to Rs.60,000/- by adding
Rs.20,000/-. The Tribunal has awarded Rs.40,000/- under
the head of medical expenses, the same is maintained as
just and proper. The tribunal has awarded Rs.9,000/-
towards loss of earning during the laid up period.
Considering the nature of injuries suffered by the
appellant/claimant and time taken for recovering, the said
sum is enhanced to Rs.13,500/- instead of Rs.9,000/-. The
Tribunal has awarded Rs.25,000/- towards disability the
same is enhanced to Rs.68,040/- (4,500x12x14x9%). The
Tribunal has awarded Rs.20,000/- towards loss of
amenities, the same is enhanced to Rs.50,000/- by adding
Rs.30,000/- thereon.
18. Thus, the appellant/claimant is held entitled to
enhanced compensation of Rs.2,31,540/- as follows:
Heads By Tribunal By this Court
Pain and suffering `40,000/- `60,000/-
Medical expenses `40,000/- `40,000/-
Loss of earning during `9,000/- `13,500/-
laid up period
Towards disability `25,000/- `68,040/-
Loss of amenities `20,000/- `50,000/-
Total `1,34,000/ `2,31,540/-
-
19. As noted above, the appellant/claimant being
passenger of Autorikshaw, the respondent No.2/insurance
company shall pay entire compensation thereon. It is
necessary to note at this juncture that since the accident
stated to have taken place on account of equal
contributory negligence on the part of the driver of the
Autorikshaw and the driver of BMTC Bus, who are the Joint
Tort feasors, respondent No.2/insurance company, shall in
the first place make the entire compensation and recover
the compensation to the extent of 50% paid to the
appellant/claimant from the owner/insurer of the
Autorikshaw in accordance with law.
20. The Hon'ble Supreme Court in the case of
Khenyei Vs. New India Assurance Co. Ltd., & Ors in
Civil Appeal No.4244/2015 arising out of (SLP (C)
No.14015/2010) decided on 07th May 2015 in
paragraphs 17 and 22 has held as
under.
'17. The question also arises as to the
remedies available to one of the joint tort
feasors from whom compensation has been
recovered. When the other joint tort feasor
has not been impleaded, obviously question
of negligence of non-impleaded driver could
not be decided apportionment of composite
negligence cannot be made in the absence
of impleadment of joint tort feasor. Thus, it
would be open to the impleaded joint tort
feasors after making payment of
compensation, so as to sue the other joint
tort feasor and to recover from him the
contribution to the extent of his negligence.
However, in case when both the tort
feasors are before the court/tribunal, if
evidence is sufficient, it may determine the
extent of their negligence so that one joint
tort feasor can recover the amount so
determined from the other joint tort feasor ..
In the execution proceedings, whereas the
claimant has right to recover the
compensation from both or any one of
them.
22. What emerges from the aforesaid
discussion is as follows :
(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or
any one of the joint tort feasors and to
recover the entire compensation as liability
of joint tort feasors 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 tort feasors 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 tort
feasors 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
tort feasor 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 tort feasors. In such a case,
impleaded joint tort feasor should be left,
in case he so desires, to sue the other joint
tort feasor in independent proceedings
after passing of the decree or award.
In view of the decision of the Hon'ble
Supreme Court stated above, the respondent No.2,
insurer of the bus is directed to pay entire
compensation amount awarded by the Tribunal with
interest to the claimant with liberty to recover 50% of the
compensation amount from the owner/insurer of the
Autorikshaw in accordance with law.
21. Thus, the appellant/claimant is held entitled for
total compensation of Rs.2,31,540/- instead of
Rs.1,34,000/-.
22. The above point is answered accordingly and
following order is passed:
ORDER
a. The MFA.No.2453/2012 filed by the
appellant/claimant is allowed-in-part and the
judgment and order of the Tribunal in MVC
No.1083/2008 is modified.
b. The appellant/claimant is held entitled
for enhanced compensation of `2,31,540/-
instead `1,34,000/- awarded by the Tribunal
together with interest at 6% per annum from
the date of petition till its realization.
c. The respondent No.2 - insurance
company is directed to pay the entire
compensation with interest at 6% p.a. within
eight weeks from the date of receipt of a
certified copy of this judgment with liberty to
recover 50% of the compensation amount from
the owner/insurer of the Autorikshaw in
accordance with law.
Sd/-
JUDGE
mkm
