Rajasthan High Court - Jodhpur

Roopa vs Kamal Sanghvi And Ors. ... on 18 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:38457]

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                S.B. Civil Misc. Appeal No. 974/2008

Roopa S/o Kachra Dandore, aged about 45 years, resident of
Kanwar Kanua Gowari, Tehsil Sangwara, District Doongarpur
(Raj)
                                                                 ----Appellant
                                  Versus
1. Kamal Sanghvi S/o Shri Chandar Shekhar Sanghvi, R/o
Shetho Ki pol Sangwara, District Doongarpur (Driver)
2. Shri Chandra Shekher Sanghvi S/o Shri Chagan Lal Ji
Sanghvi, R/o Shetho Ki pol Sangwara, District Doongarpur
(Owner)
3.    National Insurance Company Ltd. branch Regional Office
II Tal, 6 Bapu Bajar Udaipur, (Raj) (Insurance Company)
                                                             ----Respondents


For Appellant(s)         :    Mr. MC Bishnoi
For Respondent(s)        :    Mr. LD Khatri



             HON'BLE DR. JUSTICE NUPUR BHATI

Order

18/09/2024

1. Heard and perused the material available on record.

2. By way of the instant misc. appeal filed under Section 173

of the Motor Vehicles Act, 1988 ('the Act of 1988'), the

appellant/claimant has sought enhancement of the

compensation and has sought modification of the judgment &

award dated 22.03.2007 passed by the learned Judge MACT,

Dungarpur, Camp Sagwara in MACT Case No.27/2005 whereby

the learned Tribunal partly allowed the claim of the claimant by

awarding an amount Rs.1,09,658/- @ 7.5% p.a. in his favour,

however the learned Tribunal while deciding issue nos. 1 and 3

[2024:RJ-JD:38457] (2 of 8) [CMA-974/2008]

gave a finding that as the accident was a result of negligence

of both the vehicles hence, both the vehicles are liable for

contributory negligence, however as the driver and owner of

the Tempo was not impleaded as a party to the claim petition,

therefore, the learned Tribunal held that the 50% amount has

to be borne by the appellant/claimant himself and liability upon

respondent No.3/Insurance Company is fastened to the extent

of 50%. Thus, the respondent No.3 -Insurance Company was

held liable to pay 50% of Rs.1,09,658/- i.e. Rs.54,829/- @

7.5% p.a. to the appellant-claimant.

3. Succinctly stated facts of the case are that on

01.12.2003, at around 6:00 pm, appellant/claimant was going

from his village Gowari to Sagwra in Tempo No.RJ-12-P-482

with his companion, when they reached near Sagwara Village,

the respondent No.1 driving the car bearing No.RJ-12-C-2051

in a rash and negligent manner, hit the Tempo and due to

which, appellant/claimant received grievous injuries on his leg.

4. The respondent Nos.1 and 2 filed the joint reply and

denied the averments in the claim petition and submitted that

the accident took place due to negligence of the Tempo Driver

however, in case the claim petition of the claimant is accepted,

the respondent no.3/insurance company would be liable to pay

the compensation. The respondent No.3/Insurance Company in

its reply denied all averments made in the claim petition.

5. In support of their claim petition, the appellant/claimant

produced one witness and exhibited documents to prove his

case. No evidence was produced in defence by the responents/

non-claimants. As per pleadings, issues were framed by the

[2024:RJ-JD:38457] (3 of 8) [CMA-974/2008]

learned Tribunal and after hearing both the parties, the learned

Tribunal passed the judgment and award dated 22.03.2007.

However, being dissatisfied from this award, the appellant has

preferred the instant misc. appeal.

6. Learned counsel for the appellant/claimant submits that

the learned Tribunal has erred in awarding meager

compensation and therefore, the award deserves to be

modified and the compensation deserves to be enhanced. It is

also submitted by the learned counsel for the appellant that

the injuries sustained by him in that accident is grievous in

nature which resulted into 25% permanent disability. He

further submits that the learned Tribunal has erred in holding

the claimant's contributory negligence to the extent of 50%,

when the appellant/claimant was merely a passenger in the

said vehicle, Tempo.

7. Learned counsel for the appellant submits that the no

amount was awarded under the head of 'Future Prospect' to

the appellant/claimant. He further submits that the learned

Tribunal seriously erred in awarding meagre compensation

under the head of 'pain and suffering', thus under this head,

enhance amount should be awarded. He also submits that the

award passed by the learned Tribunal towards hospitalization

during the medical treatment, is slightly on a lower side and

thus, the same needs to be enhanced.

8. Per contra, learned counsel for the respondent-Insurance

Company vehemently opposes the submissions advanced by

the learned counsel for the claimant/appellant and submits that

the learned Tribunal has rightly passed the award and the

[2024:RJ-JD:38457] (4 of 8) [CMA-974/2008]

same does not call for any interference. He further submits

that inasmuch as this is a matter wherein the claimant has

suffered injuries, the future prospects, towards loss of income

has rightly not been considered by the learned Tribunal while

awarding compensation.

9. I have given my thoughtful consideration to the

submissions advanced at Bar and have gone through the

material available on record.

10. This Court finds that the learned Tribunal while deciding

issue nos.1 and 3 has held that the accident was the result of

contributory negligence of drivers of the Tempo and Car and

therefore both are liable to the extent of 50% each. However,

as the driver and owner of the Tempo was not impleaded as a

party the learned tribunal erred in holding that the claimant

has to bear the 50% of the award but as the

appellant/claimant was merely a passenger in the vehicle and

has suffered injury due to the negligence of the drivers of both

the vehicles, thus it was not a case for contributory negligence

but of composite negligence. This Court finds that in the case

of Khenyei Vs. New India Assurance Company Limited

reported in 2015(9) SCC 273 the Hon'ble Apex Court has

made a distinction between contributory negligence and

composite negligence and in the case of the latter, the claimant

is at liberty to sue both or any of the joint tort feasors and to

recover the entire amount of compensation as the liability of

joint tort feasors is joint and several and apportionment of

compensation between the two tort feasors vis-a-vis the

[2024:RJ-JD:38457] (5 of 8) [CMA-974/2008]

claimant is not permissible. The relevant paragraph of the

judgment are as under:-

"14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence.

xxx

18. 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.

xxx"

This Court finds that the learned Tribunal has erred in

apportioning the liability of both the vehicles vis-a-vis

compensation payable to the appellant/claimant and also in

holding that the rest of the 50% of the amount that was

payable by the driver and owner of the Tempo has to be borne

by the appellant/claimant as the driver and owner of the

Tempo has not been made a party to the claim petition. The

[2024:RJ-JD:38457] (6 of 8) [CMA-974/2008]

appellant/claimant was merely a passenger of the

vehicle(Tempo) and in no manner it can be held that on

account of his negligence as well the accident took place. The

instant case falls in the category of composite negligence as

the appellant/claimant, who has suffered injuries, has not

contributed to the accident rather it is a contributory

negligence of the two drivers of the vehicles. Also, the reason

assigned by the learned tribunal that in the absene of the

driver and owner of the tempo being impleaded in the claim

petition the appellant/claimant is liable to bear 50% of the

awarded compensation is also not sustainable as the claimant

is entitled to sue both the drivers/ joint tort feasors or any one

of them in the case of composite negligence. Thus, the award

dated 22.03.2007 passed by the learned tribunal is modified

and the liability of compensation is fastened to the respondent

no. 3/insurance company.

Another contention has been raised by the learned

counsel appearing on behalf of the appellant/claimant

regarding enhancement of the compensation awarded by the

learned tribunal. Thus, looking to the factual matrix of the case

and applying the ratio of the judgment rendered by Hon'ble the

Apex Court in the case of National Insurance Company

Limited Vs. Pranay Sethi & Ors. : 2017 16 SCC 680, Sarla

Verma v. Delhi Transport Corporation : AIR 2009 SC

3104 along with Pappu Deo Yadav Vs. Naresh Kumar :

AIR 2020 SC 4424, the instant misc. appeal is partly allowed

and the award passed by the learned MACT, Dungarpur, Camp

Sagwara in MACT Case No.27/2005 stands modified to the

[2024:RJ-JD:38457] (7 of 8) [CMA-974/2008]

extent of awarding Future Prospect for loss of income,

compensation towards pain and suffering and hospitalization.

After arriving at the conclusion that the judgment and award

dated 22.03.2007 deserves to be modified and enhanced, both

the counsel are directed to submit the calculation. Therefore, in

view of the discussion in the above paragraphs the amount of

compensation that needs to be awarded is as under:-

Yearly Income assessed by the Tribunal Rs.24,000/- Applying future prospects @ 25% i.e. Rs.30,000/- 24,000+25% of 24,000 Applying the multiplier on the said income Rs.93,600/-

and taking into consideration 24% permanent disability suffered by the claimant (30,000X13X24%) (A) (Add) Medical Bills (B) Rs.19,178/-

(Add) Traveling expenses (C) Rs.2,000/-

(Add) Hospitalization (D) Rs.7200/-

(Add) Attendant charges as awarded by Rs.3600/-

Tribunal (E) Pain and suffering (17.50% of the total Rs.18,620/- award excluding medical bills), i.e. (F) TOTAL (A+B+C+D+E+F) Rs.1,44,198/-

Amount awarded by the learned Tribunal Rs.54,829/- after deducting 50% on account of contributory negligence (50% of 1,09,658) Enhanced amount Rs.89,369/-

11. Thus, the appellant/claimant is held entitled to get

enhanced compensation of Rs.89,369/- along with interest @

7.5% p.a.(same as awarded by the learned tribunal) on the

enhanced compensation with effect from the date of filing of

the claim petition. The respondent no. 3/insurance company is

directed to pay the said amount to the claimant within a period

of six weeks from the date of receipt of certified copy of this

order.

[2024:RJ-JD:38457] (8 of 8) [CMA-974/2008]

12. The amount, if any, already paid by the respondent no.3/

Insurance Company, shall be adjusted towards the amount

finally awarded by this Court. Also, the respondent no.