Rajasthan High Court - Jaipur
New India Assurance Co. Ltd. vs Avinash on 20 August, 1987
Equivalent citations: [1989]65COMPCAS404(RAJ)
JUDGMENT D.L. Mehta, J.
1. All these three appeals arise against the award dated July 31, 1985, passed by the Motor Accidents Claims Tribunal, Jaipur.
2. Avinash, a young child of 7 years, was travelling in an autorickshaw No. 5442. Tempo No. RRL 6097 was coming from the opposite, direction. The autorickshaw and tempo collided and Avinash sustained multiple acerated "wounds on his face and skull. He was operated on and had to remain in the hospital for a fortnight and, thereafter he was advised rest and treatment at his residence. He remained in bed for a period of 1 1/2 months thereafter at his house. It will not be out of place here to mention that New India Insurance Company is the insurer of both the vehicles, i.e., the tempo and the rickshaw.
3. In Appeal No. 293 of 1985 (New India Insurance Company v. Avinash), it was submitted by the appellant that the liability of the insurance company cannot exceed Rs. 10,000. The maximum liability of the insurance company has been fixed under Section 95(2)(b)(ii) as Rs. 10,000 in the case of an autorickshaw. This appeal succeeds and it is hereby directed that the liability in the case of autorickshaw cannot exceed Rs. 10,000 as far as the insurance company is concerned and the rest of the amount can be recovered from the owner and driver of the autorickshaw. It will not make any difference as tempo RRL 6097 was also insured with the New India Insurance Company. In the case of a tempo, the liability has been limited only up to Rs. 50,000. Naturally, the liability can be fixed up to Rs. 50,000 under the insurance policy of the tempo. It was submitted by Mr. Bhargava, counsel for the insurance company, that the vehicle was sold by the owner of the tempo to one Abdul Aziz. Abdul Aziz has not been produced in the witness box by any of the parties. The burden lies on the insurance company to prove that the tempo has been sold. Apart from that, a person who is the victim of an accident cannot know about the underhand transactions, if any, effected. The registered owner is the owner of the vehicle for all practical purposes. It is the duty of the registered owner to inform the registering authority within a period of 14 days about the transfer, if any, effected. The mandate of the law cannot be flouted and the registered owner cannot escape the liability on the ground that he has transferred the vehicle to a third party. Registration of a vehicle is necessary under the Motor Vehicles Act so that the victims of the accident can know who is the real owner of the vehicle. Apart from that, if there is a violation of Section 42 or Section 123 of the Motor Vehicles Act, the owner is responsible and can be punished under Section 42 read with Section 123 of the Motor Vehicles Act. Registration is also necessary for the purpose of implementation of law including the criminal law. Any party can take the defence if allowed to do so by saying that he has transferred the vehicle. This type of escaping the liability under the criminal law as well as the civil law cannot be allowed. Though, in the instant case, I feel that the appellants have failed to prove that there was any transfer in favour of Abdul Aziz, assuming for the time being that there was a transfer in favour of Abdul Aziz, even then the liability of the registered owner does not cease. In such cases, the registered owner as well as the real owner both will be liable and they will be responsible for the payment of compensation to the plaintiff. In the case of Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 (AP) [FB]; [1986] ACJ 1, the High Court of Judicature of the State of Andhra Pradesh has held that the insurance company cannot raise the defence that the policy lapses because of the sale of the vehicle I it cannot contend that the accident took place due to the negligence on the part of the transferee and the insurance company is not liable. It cannot also contend that the transferor-insurance company is not responsible to redeem the compensation payable by the transferee because such defences are not contemplated under Section 96(2) of the Act. Section 96(2) reads as under :
" No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given, the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :--
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident, the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :--
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle or
(d) without a side car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification ; or
(iii) a condition excluding liability for injury caused or contributed by conditions of war, civil war, riot or civil commotion, or
(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
4. The liability of the insurance company is there throughout unless the conditions laid down under Section 96(2) are fulfilled. The case of transfer is not covered by the provisions of Section 96(2) and, as such, even in the case of transfer, the liability of the insurance company exists. There is an obligation to register the vehicle for controlling and regulating the movement of the vehicle by the authorities under the Act and they do not stand in the way of passing the title to the purchaser. It is true that the provisions enjoined on both the transferor and the transferee to report the factum of transfer of the vehicle to the registering authority. In the case of a transfer, the transferee whose name has not been registered as well as the registered owner are both jointly and severally responsible for the payment of compensation in addition to the liability of the driver and the insurance company.
5. It is settled law that when a person is injured without any negligence on his part but as a result of the negligence on the part of other persons or as a result of the combined negligence of two other persons, it is not a case of contributory negligence. The term " contributory negligence" squarely and solely applies to the conduct of the claimant alone. If the claimant is guilty of an act or omission which has materially contributed to the accident and resulted in injury and damage, the matter comes within the concept of contributory negligence.
6. In cases where the accident occurs and the resulting injuries and damage flow without any negligence on the part of the claimant, but as a result of the negligence on the part of two or more persons, it is a case normally styled in legal parlance as composite negligence. In the case of contributory negligence, the courts are enjoined to apportion the loss between the parties as the facts and circumstances may justify. In the case of composite negligence, the question of apportionment of the loss between the parties does not arise at all. In the case of composite negligence the person wronged has a choice of proceeding against all or any one or more than one wrongdoer. Every wrongdoer is liable for the whole damage if it is otherwise made out. It is the admitted case of both the parties that the wrongdoers are the drivers of the tempo and the rickshaw. It is also the admitted case of both the parties that Avinash, the claimant, has not acted negligently which has resulted in the accident. The Tribunal below has committed an error in holding that this is a case of contributory negligence and thereby apportioning the liability of the owners, drivers and insurance companies of the vehicles. It is a case of composite negligence and the question of apportionment qua the claimant does not arise at all. All the parties who are wrongdoers are jointly and severally liable to compensate the loss sustained by the injured. The doctrine of apportionment does not apply in the case of composite liability. The award of the Tribunal apportioning the liability cannot be maintained.
7. In the case of death of a child the considerations are altogether different from the considerations which the court should take in the case of accidents resulting in injuries. If a child of seven years dies in an accident, the consideration will be how much amount will have to be spent for his maintenance, education, etc. Further consideration will be what will be the longevity of life, how much amount he will be able to provide to the members of his family who may be dependent on him. Thus, in the case of death, there is a liability which is to be deducted out of the compensation to be awarded to the dependants of the deceased. In the case of injury, there cannot be any such consideration at all. In the case of instantaneous death, there may not be agony and the compensation may not be awarded on account of agony. In the case of injury, there may be life-long agony which may persist throughout life and may result in humiliation throughout the life. For this reason, I am of the view that the principles which are applied in the case of death cannot be applied in the case of injuries.
8. The claimant has claimed Rs. 2,000 on the ground that he could not appear in the examination and his future has been spoiled. The court below has awarded Rs. 3,000 on this ground. Rs. 50,000 has been claimed by the present petitioner on the ground that mentally he has become weak and his mental and physical growth has suffered because of injuries sustained by him. The court has awarded Rs. 10,000 on this court. The claimant has claimed Rs. 1,00,000 on account of future obstacles and impediments which may come in the enjoyment of life. The court has awarded Rs. 2,000 on this count. The claimant has claimed Rs. 35,000 on account of expenses, etc., on medicines and tonics and the court has awarded Rs. 4,000 on this count. The court has also awarded Rs. 3,000 on the ground of pain, physical and mental. Thus, the court has awarded Rs. 40,000 in all. The court has rejected the claim of Rs. 5,000 which has been claimed by the claimant on the ground that the persons who are attending had to incur expenditure on account of coming and going to the hospital as well as on other grounds. There is a claim of Rs. 50,000 on account of disability.
9. Mr. Mathur, appearing on behalf of the claimant, has submitted that only a meagre sum of Rs. 40,000 has been awarded which is not just and reasonable in the facts and circumstances of the case. Mr. Srivastava, appearing on behalf of one of the owners, submitted that the amount awarded is sufficient and the quantum should not be enhanced. It was also submitted by Mr. Srivastava that the Tribunal has considered all the aspects of the case including the medical evidence and, as such, there is no necessity of raising the quantum of amount.
10. I have heard the rival contentions of both the parties. I have also discussed the guiding principles in the matter of quantum of award. In the instant case, P.W.-l, Dr. Narpat Singh, has appeared in the witness box. He has stated on oath that on November 17, 1981, he conducted the operation on the claimant, Avinash. He has produced exhibit 3, the operation note prepared by him. He has described the wounds in exhibit 3. He has further stated on oath that signs of stitches are present. He further states that on account of hypertrophied scar, the number of signs may further increase. He has further stated that the healing process has taken place accompanied by hypertrophied scar.
11. Dr. P.K. Mathur has also appeared in the witness box and has stated that on account of the accident, cornea remains exposed. He has further stated that there is impending danger of vision loss. He has further stated that it is also a case of permanent disfiguration as the eye-ball remains lifted on the upper side. He has prepared exhibit 5, the certificate.
12. Dr. S.C. Sudrania has appeared in the witness box and stated that on account of the injuries sustained, the claimant, Avinash, has suffered psychological setback which is an impediment in the matter of mental and physical growth. He has prepared a certificate, exhibit 6. This witness has further stated that he has been seeing the claimant for the last 12 months and there is a persistent psychological setback. Kalyani Mitra, who is a teacher, has produced exhibits 7 to 10 to show that before the accident, claimant, Avinash, was getting more than 80% marks in examinations and now he is getting only 50 to 60 per cent. marks. This witness has also stated that the accident has also affected his memory. From the evidence of the doctors corroborated by other witnesses, this fact stands proved that there is a case of permanent disfiguration. Furthermore, it is also proved that it has adversely affected the mental and physical growth of the claimant. Doctors have also proved that there is a danger of loss of vision. Taking note of these findings arrived at by the doctors and supported by the witnesses who ate looking after the boy, I will deal with the point of quantum of damages.
13. After the dictation of this part of the judgment, Mr. Shrivastava, counsel for one of the owners, has cited before me the case of Mohan Lal v. Balwant Kaur [1985] 1 ACC 322 (Raj). It was submitted by Mr. Shrivastava that this court awarded Rs. 50,000 in the case of an injured boy of six years. In that case, amputation of leg resulting in permanent disability was there. However, the court awarded Rs. 50,000 by increasing the award from Rs. 31,675 to Rs. 50,000. In the instant case, it is a pity that a boy of seven years has sustained such grievous injuries which have resulted in the disfiguration of the face. Medical jurist, Dr. Manoj Raj, has corroborated the fact of disfiguration of the face and the statement given by Dr. Narpat Singh Shekhawat on this point. Doctors have also stated that because of the injury, the signs of hypertrophy will continue. It will not be out of place here to mention that in addition to this there is a danger which may result in the loss of vision. These two injuries are sufficient in themselves for the enhancement of the award given by the Tribunal. These injuries will lead to humiliation throughout life and may create a number of problems including problems at the time of marriage. A sum of Rs. 50,000 should be awarded on this count alone instead of the sum awarded by the Tribunal below. Any amount of monetary compensation to a person in this pitiable and miserable state is too trivial for a plight where the human being' is required to lead a life worse than chattel, always in mental agony, disturbance and disappointment for the the whole of the life as a curse due to the rashness and negligence of the drivers of both the vehicles. In such a state of affairs, I am inclined to accept the contention of Mr. Mathur and increase the compensation to Rs. 50,000 on these counts from the amount awarded by the Tribunal below.
14. The court below has awarded Rs. 3,000 on account of pain and mental agony. The child of seven years was operated on and had to remain in hospital for 15 days and, thereafter, he had to take regular treatment at his residence for a period of H months. Only the person whom the shoe pinches can understand the physical pain and the mental agony. The sum of Rs. 3,000 is totally insufficient and trivial. This sum is increased from Rs. 3,000 to Rs. 10,000.
15. It has been proved by overwhelming documents and the statements of the doctors and the teacher that the student-claimant has suffered psychological setback resulting in obstruction in physical and mental growth. It has also come on record that the student could not appear in the half yearly examination also. The teacher has proved that initially the student was getting 81 per cent. marks but now he is getting only 55 to 61 per cent. marks. The amount awarded on this count is maintained and the claimant will be entitled to get Rs. 10,000 on this count.
16. The court below has awarded Rs. 4,000 on account of costs of medicines and other expenses incurred within a period of two months. This amount is also maintained.
17. The court below has rejected the claim of Rs. 5,000 on the count that the near relations had to go to the hospital to attend the injured child. One lives in society and it is the duty of the family members to attend to the injured person who had been admitted in hospital or who gets treatment at home. The child cannot live without an attendant in the hospital as well as at home. The expenditure incurred in going to the hospital and attending to the child must be granted by the Tribunal. I find that the Tribunal has committed an error in rejecting this part of the claim in toto. Even if we take into consideration Rs. 20 per day per attendant and assume that the child will need at least two attendants per day then the figure comes to Rs. 40 per day including the expenses for coming and going to the hospital. Even if we take into consideration 15 days' period during which the child remained in hospital then naturally the expenditure will come to Rs. 600 incurred by the attendants, may be his family members. The parents of the child will have to give a goby to their normal duties and they will definitely lose the leave which they have earned in case of employment. This loss should be compensated to the claimant and for this reason, I consider it proper to award Rs. 2,000 on this count also. Mr. Mathur has also submitted before me the case of Miss Bindu v. Chandra Shekhar [1987] ACJ 1092 (Raj). In this case, the injured remained under treatment for a period of less than two months. There was a fracture of fibula and skin grafting was also done. This court awarded Rs. 70,000 as compensation.
18. For the reasons mentioned above, the figure of compensation awarded is increased from Rs. 40,000 to Rs. 76,000. The petitioner will get interest at the rate of 12 per cent. per annum from the date of filing of the claim petition to the date of realisation.
19. Avinash was a child of seven years at the time of the accident and he was a child of 11 years at the time of filing this appeal. Now the approximate age would be 13 years. In the facts and circumstances of the case, I consider it proper that only a sum of Rs. 6,000 should be paid in cash and the remaining sum of Rs. 70,000 should be deposited in fixed deposit account for period of three years and it should be renewed for a further period of three years.
20. As far as the New India Insurance Company is concerned, the total liability in relation to autorikshaw No. RSB 5442 will be Rs. 10,000 only. Similarly, in relation to tempo No. RRL 609, the total liability of the insurance company will be only Rs. 50,000. Thus, the liability of insurance company will be Rs. 60,000 in all plus the interest accrued thereon. The rest of the amount of Rs. 16,000 plus interest can be recovered from either owner of the vehicles. Liability of the owners and drivers is for the whole amount jointly and severally.
21. All the three appeals are disposed of accordingly.