Karnataka High Court
Suryaprakash S/O Nagappa vs Shrishail S/O Hanamanth ... on 3 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.30400/2013 (MV)
Between:
Suryaprakash S/o Nagappa,
Age: 30 years, Occ: Driver,
R/o Anantapuram (AP),
Now Residing at Basavana Bagewadi,
Dist: Bijapur-586101.
... Appellant
(By Sri.Harshavardhan R.Malipatil, Advocate)
And:
1. Shrishail S/o Hanamanth Yamadapur,
Age: 42 years, Occ: Business,
R/o Shankra Nagar, Hotgi Road,
Solapur.
2. The Divisional Manager,
New India Assurance Company Ltd.,
S.B.Temple Road, Gulbarga-585102.
... Respondents
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to allow this appeal and
award compensation of Rs.11,60,675/- (excluding the
amount awarded by the Tribunal) along with interest @
12% P.A. by fastening the liability on all the respondents,
by modifying the judgment and award of the MACT IX,
Basavanabagewadi dated 17.11.2012 in MVC No.45/2011.
2
This appeal coming on for hearing, this day, the
Court delivered the following:-
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) is filed by the petitioner being aggrieved by
the judgment and award dated 17.11.2012 passed in
MVC No. 45/2011 by the Senior Civil Judge & Member
Motor Accident Claims Tribunal-IV, Basavana
Bagewadi (hereinafter referred to as 'the Tribunal', for
short).
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. The appellant is the petitioner, respondents
are the respondents before the tribunal.
3. Facts giving rise to the filing of the appeal
briefly stated are;
3.1 That on 18.01.2008 at about 3.00 a.m.,
the petitioner was proceeding in a Mini Lorry bearing
registration No.AP-02/W-6026 from Anantapur to
Tikota. When he came near Hosur cross on NH-13
road, at that time, the offending vehicle lorry bearing
registration No.MH-04/BG-3545 was stopped on the
road without putting indicator and signals. At the
same time, another vehicle came infront. Hence, the
mini lorry dashed to the parked lorry. As a result of
the aforesaid accident, the petitioner sustained
grievous injuries and admitted to Kerudi Hospital,
Baglakot and he has spent huge amount for his
medical treatment. Prior to the incident, he was hale
and healthy and was working as driver by getting
monthly income of Rs6,000/- per month. Due to the
accidental injuries, the petitioner has suffered
permanent disability and lost his earning capacity.
Respondent No.1 being the owner and respondent
No.2 being the insurer of the offending vehicle are
jointly and severally liable to pay compensation.
3.2. The petitioner filed a petition under Section
166 of the Act seeking compensation for the injuries
sustained in the road traffic accident. Hence, prayed
to allow the claim petition.
3.3. Respondent No.1 did not file written
statement, respondent No.2 filed written statement
denying the averments made in the claim petition and
denied the insurance policy of the lorry.
3.4. It is further contended that the driver of
the mini lorry bearing registration No.AP-02/W-6026
from was in a rash and negligent in driving his vehicle
and there was no contributory negligence on the part
of the driver of lorry bearing registration No.MH-
04/BG-3545 in parking it and the said lorry was
parked on the extreme end of the road. The criminal
case was registered against the driver of the mini
lorry. Since the petitioner is not impleaded the owner
and insurer of the lorry bearing registration No.AP-
02/W-6026, the petitioner is liable to be dismissed as
non-joinder of necessary parties and also denied the
date, time and place of accident. Hence, prayed to
dismiss the claim petition.
4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded evidence. The petitioner in order to prove
his case, examined himself as PW-1 and in order to
prove the disability, examined the doctor as PW-2 and
got exhibited documents namely Exs.P1 to Ex.P105.
On behalf of the respondent No.2-Insurance Company
one of its officer examined as RW.1 and got marked
insurance policy as Ex.R1. The Tribunal, by the
impugned judgment, held that the accident took place
on account of rash and negligent driving of the
offending lorry bearing registration No.MH-04/BG-
3545 by its driver, as a result of which, the petitioner
sustained grievous injuries. The Tribunal further held
respondent No.2 proved that the driver of the
offending Mini lorry bearing registration No.AP-02/W-
6026 was also negligent in causing the accident.
Further held that the petitioner is entitled for
compensation and consequently allowed the claim
petition in part and awarded compensation of
Rs.1,59,325/- along with interest at the rate of 8%
p.a. from the date of petition till the date of depositing
the compensation amount and further held that
respondent Nos.1 and 2 are jointly and severally liable
to pay 50% of the compensation amount. Being
dissatisfied with the compensation awarded by the
Tribunal, the petitioner has filed the present appeal
seeking for enhancement of compensation amount
and liability.
5. The learned counsel for the petitioner
submits that the Tribunal has committed an error in
recording a finding that the petitioner has not made
the owner and insurer of the Mini lorry bearing
registration No.AP-02/BG-3545, in which the
petitioner was travelling. He further submits that in
case of tort feasor there is no necessity for the
petitioner to make owner and insurer of another
vehicle involved in the accident. In support of his
contention, he relied upon the judgment of the
Hon'ble Supreme Court in the case of Khenyei vs
New India Assurance Co.Ltd. & Others, reported
in 2015 (9) SCC 273. He further submits that the
petitioner has suffered permanent disability. In order
to establish the permanent disability, petitioner got
examined the doctor as PW.2, wherein he deposed
that the injuries are permanent in nature and
percentage of disability would be 50% related to left
upper limb and for whole body it would be 20%. He
further submits that tribunal has awarded lesser
compensation. Hence, on these grounds he prays to
allow the appeal.
6. Per contra, learned counsel for
respondent No.2, Insurance Company submits that
the Tribunal was justified in saddling the liability on
the respondent Nos.1 and 2 jointly and severally at
50%. He further submits that petitioner has not made
the owner and insurer of the mini lorry in which the
petitioner was travelling even the driver of mini lorry
has contributed negligence in causing the accident. He
further submits that the compensation awarded by the
Tribunal is just and proper. Hence, sought for
dismissal of the appeal.
7. Heard the learned counsel for the parties
and perused the records.
8. The point that arise for consideration is
with regard to liability and quantum of compensation
and liability.
9. There is not dispute with regard to the
date, place and manner of accident. In order to prove
that the negligence on the part of the driver of the
offending vehicle i.e. mini lorry bearing registration
No.AP-02/W-6026 and lorry bearing registration
No.MH-04/BG-3545, the petitioner has produced copy
of FIR, complaint, spot panchanama and charge sheet
and which is marked as Ex.P6. ExP6 discloses that the
accident occurred due to rash and negligent driving of
the driver of the offending vehicle i.e. mini lorry and
lorry. The Tribunal was justified in recording a finding
that the accident occurred due to rash and negligent
driving of the driver of the offending vehicle and
insofar as non-joinder of necessary parties in respect
of owner and insurer of mini lorry.
10. The Tribunal has observed that the
petitioner has suppressed the owner and insurer of
the mini lorry. The Hon'ble Supreme Court in the case
of Khenyei's (supra) has held as under;
22.1. In the case of composite
negligence, the 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.
22.2. 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.
22.3. 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.
22.4. 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.
11. From perusal of the aforesaid judgment, as
held by the Hon'ble Supreme Court that in the case of
composite negligence, apportionment of compensation
between two tort-feasors the claimant is not
permissible and he can recover at his option whole
damages from any of them. 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.
12. In the present case, it is the choice of the
petitioner to seek compensation against one of the
company. In the present case the tribunal has
observed that there was contributory negligence to
the extent of 50% on the respondent Nos.1 and 2 and
i.e. owner and insurer of mini lorry bearing
registration No.AP-02/W-6026. The owner and insurer
of mini lorry bearing registration No.AP-02/W-6026
are liable to pay compensation to the extent of
remaining 50% and tribunal ought to have considered
the law laid down by the Hon'ble Supreme Court and
the finding recorded by the tribunal is contrary to the
law laid down by the Hon'ble Supreme Court in the
case of Khenyei's (supra).
13. Insofar as disability is concerned, the
petitioner examined the doctor as PW-2 who has
deposed that the disability certificate as per Ex.P103
is issued on clinical examination of the petitioner.
PW-2 has opined that the petitioner has suffered
percentage of disability would be 50% related to left
upper limb and for the whole body it would be 20%.
The respondent No.2 has not challenged the disability
which is assessed by the tribunal. The tribunal was
justified in assessing the disability at 20%.
14. Insofar as quantum of compensation is
concerned, it the case of the petitioner that he was
driver and sustained injuries in the said accident and
he is unable to driver the vehicle. It is further
contended that the petitioner was earning Rs.6,000/-
per month. In order to substantiate the contention,
the petitioner has not produced any income proof to
establish that he was getting income of Rs.6,000/- per
month. In the absence of proof of income, this Court
assess the notional income as per the guidelines
issued by the Karnataka State Legal Services
Authority. The tribunal has assessed the income at
Rs.4,500/- per month which is just and proper.
15. The petitioner is aged about 30 years at
the time of the accident and multiplier applicable to
his age group is '16'. The whole body disability is
taken at 20%.
16. Further, the tribunal has not awarded any
compensation under the head laid up period.
Therefore, this Court considering the nature of injuries
sustained by the petitioner who is under bed rest for
three months, he is entitled for a compensation under
head of laid up period.
17. Considering the nature of injuries sustained
by the petitioner and also the evidence of PW-2, this
Court reassess the compensation awarded under the
following heads:
Heads Tribunal This Court
Loss of future income Rs.1,72,800/- Rs.2,16,000/-
due to disability
Loss of amenities in life, Rs.20,000/- Rs.30,000/-
happiness and
frustration
Conveyance attendance Rs.10,000/- Rs.25,000/-
charges food and
nourishment
Pain and suffering Rs.30,000/- Rs.40,000/-
Medical expenses Rs. 85,859/- Rs. 85,859/-
Laid up period - Rs.13,500/-
Total Rs.1,59,325/- Rs.4,10,359/-
Enhanced by this Court Rs.2,51,034/-
Thus, the petitioner is entitled to a total
compensation of Rs.4,10,359/- as against
Rs.1,59,325/- awarded by the tribunal. The petitioner
is entitled for enhanced compensation of
Rs.2,51,034/-.
18. In view of the above discussion, I proceed
to pass the following:
ORDER
The appeal is allowed in part.
The judgment and award passed by
the Tribunal in MVC No.45/2011 dated
17.11.2012, is modified. The petitioner is
entitled to an enhanced compensation of
Rs.2,51,034/- along with interest at the
rate of 6% p.a. from the date of filing of
the claim petition till the date of
realization.
Respondent No.2, Insurance
Company is directed to pay the entire
compensation amount with interest @ 6%
p.a. on the enhanced compensation,
within a period of eight weeks from the
date of receipt of copy of this judgment.
However, liberty is reserved to respondent
No.2 to recover 50% of the compensation
amount from the owner and insurer of the
mini lorry bearing registration No.AP-02/W-
6026.
Sd/-
JUDGE
msr
