Rajasthan High Court - Jodhpur
Pitambar Das vs Rakesh Kumar And Ors on 20 September, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2493/2011
Pitambar Das S/o Shri Hathi Ram, by caste Maheshwari,
resident of Laxmipura, Barmer.
----Appellant
Versus
1. Rakesh Kumar S/o Shri Raj Kumar Jain, resident of D-20,
Lal Bahadur Nagar, Kesri Kothi Marg, Jawahar Lal Nehru
Marg, Jaipur
2. Arjun Singh S/o Shri B.S. Rathore, resident of 6, Ganesh
Colony, Jagatpura, Jaipur
3. United India Insurance Company Limited, Station Road,
Barmer
4. Rajasthan State Road Transport Corporation, through
Depot Manager, Barmer & Udaipur c/o Rajasthan State
Road Transport Corporation, Barmer
5. Satya Narain Kumti, Driver, Rajasthan State Road
Transport Corporation, through Depot Manager, Rajasthan
State Road Transport Corporation, Udaipur.
----Respondents
For Appellant(s) : Mr. Anil Bhandari
For Respondent(s) : Mr. Anil Kaushik and Mr. M.R.
Pareekh
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment Reportable 20/09/2018 Appellant-claimant feeling dissatisfied with the impugned judgment and award dated 4th of April, 2006 of Motor Accident Claims Tribunal, Barmer (for short, 'learned Tribunal), has laid this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act').
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2. Cause of grievance against the impugned judgment and award projected by the appellant is two-folds; which are findings on issue No.1 to the extent learned Tribunal has found both the vehicles evenly negligent for the accident, and adequacy of compensation awarded. In substance, appellant has craved for adjudging both the vehicles compositely negligent for the cause of accident and enhancement of compensation commensurating with the injuries suffered by him.
3. Brief facts are that on 22.08.2002 appellant was travelling in the bus hired on contract by the Rajasthan State Road Corporation bearing No.RJ-14-P-2000 from Jaipur, and while it was on its way towards Beawar-Ajmer, in the night at about 12 PM, head on collision took place with another bus of the Corporation bearing No.RJ-27-P-4112 of Udaipur depot coming from opposite direction near Beawar and in the accident besides others, appellant also sustained grievious injuries including fractures of hands and backbone besides severe head injuries. As per version of the appellant, accident occurred due to rash and negligent driving of both the vehicles by their drivers besides inapt handing of vehicles. A report of the said accident was lodged at Police Station, Beawar and after investigation, chargesheet against drivers of both the vehicles was filed in the concerned criminal court. Appellant, in his claim petition, in all, under different heads, claimed compensation to the tune of Rs.34,60,000, jointly and severally from the respondents.
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4. The claim petition was contested by insurer respondent No.3. Respondent Insurer, in its reply, denied most of the averments in toto. It is further submitted by the insurer that accident has occurred due to rash and negligent driving of the Corporation vehicle and not the insured vehicle. Maintainability of the claim is also challenged by the insurer on the anvil of territorial jurisdiction. Adverting to quantum of compensation claimed by the appellant, for loss of future income it is specifically pleaded by the insurer in return that he has not produced any documentary evidence to show impairment in earning capacity. Yet another objection was raised on behalf of insurer to dispute appellant's permanent disability in absence of requisite medical certificate. The insurer has also alleged in the reply that appellant has claimed exorbitant compensation, which is not tenable. Some of the specific objections are also incorporated in the reply on behalf of insurer, viz., insured is required to prove fitness of vehicle, requisite permit and valid driving licence of its driver for fastening liability to pay compensation. That apart, factum of insured vehicle being hired on contract by the Corporation is also cited as reason by the insurer for its immunity to pay compensation. By narrating all these facts, the insurer pleaded for rejection of the claim petition.
5. Respondent Corporation also joined issue with the appellant and contested the claim. In its reply, respondent Corporation refuted all the averments of claim petition for want of knowledge.
(4 of 21) [CMA-2493/2011] It is further stated in the reply that appellant suffered minor injuries due to accident, and therefore, he is not entitled for an embellished claim under different heads. Denying rash and negligent driving by its driver, in the return, it took a stand that accident occurred due to rash and negligent driving of other vehicle bearing No. RJ-14-P-2000. With these positive assertions, the Corporation craved for rejection of the claim petition.
6. Learned Tribunal, on the basis of pleadings, settled three issues for determination. To substantiate his claim, appellant- claimant himself appeared in the witness-box as AW1 and examined one Shankerlal as AW2. No evidence was produced on behalf of respondent-insurer as well as respondent No.4 & 5 either oral or documentary in support of their case. The learned Tribunal, after hearing final arguments, decided issue No.1 against the respondents and recorded its finding that drivers of both the vehicles have contributed equally for cause of accident. Thus, the learned Tribunal has found both the drivers callous and negligent in driving their respective vehicles which led to accident resulting in injuries to the appellant.
7. As the respondent No.3, insurer, did not adduce any evidence to discharge its burden for proving issue No.3, the learned Tribunal decided the same against it. Issue No.3 was in fact settled by the learned Tribunal on the basis of specific objections raised by the respondent insurer in its return, (5 of 21) [CMA-2493/2011] therefore, in want of failure to discharge burden same was decided against it.
8. While adjudicating issue No.2, regarding quantum of compensation, learned Tribunal, upon appreciation of evidence, partly decided the same in favour of appellant and awarded compensation of Rs.1,54,300 under different heads. The learned Tribunal, while finally adjudicating the claim, held the respondents jointly and severally liable to pay compensation to the appellant with a further direction that liability for payment of compensation shall remain even between owners, drivers and insurer of both the vehicles. Learned Tribunal also awarded interest @6% per annum on the compensation amount from the date of claim application.
9. Espousing appellant's cause for enhancement of compensation, it is submitted by learned counsel that the learned Tribunal has not awarded any compensation to the appellant for permanent disablement upto 75%. It is contended by learned counsel that no reasons much less plausible reasons are recorded by the learned Tribunal for discarding disability certificate (Ex.186) issued by an expert neurosurgeon doctor. Learned counsel would contend that simply because a zerox copy of the certificate was placed on record, the same ought not to have been ignored by the learned Tribunal when it is exhibited, inasmuch as in claim cases strict rules of evidence are not applicable. It is also argued by learned counsel that salary (6 of 21) [CMA-2493/2011] certificate of the appellant issued by his employer was duly proved by producing employer in the witness box yet the learned Tribunal on its mere ipse dixit has assessed compensation for loss of income by slashing half of the income of the appellant. Learned counsel has argued that due to accident appellant has suffered fractures of both the hands and backbone besides severe head injury at the age of 56 but the learned Tribunal while awarding compensation has completely overlooked injuries suffered by him.
10. Learned counsel further submits that appellant remained under treatment for almost four years at various hospitals was a fact of great significance for awarding just compensation but that aspect is completely eschewed by the learned Tribunal. Learned counsel has referred to Ex.163 MRI Report of the appellant besides MLC Reports (Exs.174 & 175), which according him are not properly construed by the learned Tribunal for quantifying just compensation. Learned counsel strenuously urged that while determining compensation learned Tribunal has not quantified any amount for pain and sufferings of the appellant.
11. Learned counsel has vehemently argued that as per second Schedule to the Act, permanent total disablement and percentage of loss of earning capacity due to injuries suffered by an individual shall be construed as per Schedule under the Employees' Compensation Act, 1923 (for short, 'Act of 1923'), and therefore, by ignoring the certificate of a qualified medical (7 of 21) [CMA-2493/2011] practitioner, as defined under Section 2(1)(i) of the Act of 1923, learned Tribunal has seriously erred. He, therefore, submits that by applying the provisions of the Act of 1923, appellant may be awarded adequate compensation for permanent disablement and loss of earning capacity.
12. Challenging the impugned award to the extent it has allowed 6% interest on claim amount, learned counsel has urged that rate of interest is per se inadequate, therefore, merits enhancement. Assailing finding on issue No.2, learned counsel contends that the learned Tribunal has erroneously decided the said issue by holding both the vehicles contributorily negligent. It is argued by learned counsel that accident has occurred due to gross negligence of both the vehicles, and therefore, learned Tribunal ought to have held them compositely negligent for the cause of accident, facilitating their joint and several liability to pay compensation. In support of his various contentions, learned counsel for the appellant has placed reliance on following judgments:
(1) Kanno Bhai Vs. Mahaveer Singh & Ors.
[2009 WLC (UC) 85]
(2) Raj Kumar Vs. Ajay Kumar & Anr. [2011
R.A.R. 86 (SC)]
(3) Dr. Smt. Leela Shetty Vs. Bhadrik R. Shah &
Ors. [2014 (2) WLN 513 (Raj.)]
(4) Kumari Kiran thr. Her father Harinarayan
Vs. Sajjan Singh & Ors. [2015 (1) R.A.R. 87
(SC)]
(5) Jakir Hussein Vs. Sabir & Ors. [2015 (1)
R.A.R. 143 (SC)]
(6) Santosh Devi & Ors. Vs. Mahaveer Singh &
Ors. [AIR 2018 SC 3787]
(7) Khenyei Vs. New India Assurance Co. Ltd. &
Ors. [2015 (2) R.A.R. 193 (SC)].
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13. Per contra, it is argued by learned counsels for the respondents, in unison, that award is based on sound appreciation of evidence, which requires no interference. Learned counsels appearing for respondent insurer and corporation submit that both have satisfied impugned award to the extent of their liability adjudged by the learned Tribunal. It is further submitted by learned counsels that the learned Tribunal has rightly disbelieved zerox copy of the disability certificate (Ex.186) inasmuch as the same was issued by a private hospital and the treating doctor has not appeared in the witness box to prove the same. Learned counsels for the respondents would contend that in a claim petition under Section 166 of the Act, Schedule II is not attracted, and therefore, its invocation by the appellant for placing reliance on zerox copy of permanent disability certificate (Ex.186), issued by a private hospital, is not desirable and the same has been rightly discarded by the learned Tribunal.
14. Joining issue with the appellant on issue No.2, it is submitted by learned counsels for the respondents that said finding is based on proper appreciation of evidence and other materials available on record. Learned counsels for the respondents elaborating this submission would contend that the finding recorded by learned Tribunal on issue No.2 cannot be made subject matter of judicial review in the backdrop of facts and circumstances of the case. In totality, it is argued by learned counsels for the respondents that compensation awarded (9 of 21) [CMA-2493/2011] by learned Tribunal is just, fair and reasonable within the four corners of Section 168, and therefore, prayer for enhancement merits outright rejection. For substantiating their arguments, learned counsels appearing for the respondents have placed reliance on one judgment, also cited by learned counsel for the appellant, in Raj Kumar Vs. Ajay Kumar & Anr., but with different citation of MACD 2011 (SC)33.
Heard learned counsel for the parties at length, perused the impugned judgment and award and thoroughly scanned the record of the case.
15. Chronicle saga of an accident victim, as depicted in the matter, is quite heartening. Case set up by the appellant for claiming walloping compensation under various heads showcases sufferance of many grievous injuries on vital parts of the body in road accident. Apart from it, appellant has also highlighted 75% permanent disability due to cumulative effect of all these injuries. Afflictions of the appellant in the instant appeal are bi-fold but mainly regarding insufficiency of the compensation amount determined by the learned Tribunal. The general perception of the appellant about the awarded compensation clearly and unequivocally reflect his indignation being not commensurating with the accidental impairments. Taking a dig at the finding of learned Tribunal in this regard, appellant has categorized awarded compensation pee-nuts, falling short of just, reasonable and fair reparation, envisaged under Section 168 of the Act.
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16. Therefore, giving primacy to the substantial grievance of the appellant, it would be appropriate to examine finding recorded by learned Tribunal on issue No.3 at the threshold. Appellant, in order to substantiate his plea for upgrading amount of compensation, has placed reliance on disability certificate Ex.186, issued by neurosurgeon indicating 75% permanent disability. Besides that, not allowing proportionate loss of income due to injuries suffered by the appellant, despite requisite proof in the form of certificate Ex.186 and 187 respectively, is also a cause of his discontentment. Denial of compensation to the appellant for pain and sufferings is yet another cause of annoyance against the impugned award. The certificate Ex.186 (zerox copy issued by a doctor of private hospital) did not find favour of the learned Tribunal, and therefore, it is completely disbelieved. This sort of situation has prompted appellant to take shelter of second schedule of the Act, wherein legislature envisaged criteria for determining compensation in case of permanent total disablement/permanent partial disablement. The second schedule of the Act in this behalf enjoins for adopting criteria and yardsticks as per schedule under the Employees' compensation Act, 1923
17. Rival parties on this contentious issue are at loggerheads. Objection vociferously canvassed by the learned counsels for the respondents, that criteria envisaged under second schedule of the Act is not attracted vis-à-vis claim under Section 166 of the (11 of 21) [CMA-2493/2011] Act, per se appears to be quite alluring, but, I am afraid, it lacks requisite sting. There remains no dichotomy that essentially second schedule prescribes criterion for assessment of compensation vis-à-vis claims under Section 163A of the Act, but then Courts are pressing into service multiple method for assessing compensation. It is noticed by the Court that "multiple method" serve the best purpose of just compensation contemplated under Section 168(1) of the Act. Therefore, second schedule of the Act is a significant guiding factor for determining fair and reasonable compensation in case of death as well as permanent disability. I am fortified in my view by a judgment of Apex Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas & Ors. [(1994) 2 SCC 176], wherein the Court acknowledged multiplier method logical, sound and legally well established. The Court held:
"It is necessary to reiterate that the multiplier- method is logically sound and legally well- established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one third or one fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a (12 of 21) [CMA-2493/2011] settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier-method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110(b) of the Motor Vehicles Act, 1939 in so far as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier-method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases."
18. Supreme Court, in a later judgment in Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121], while differentiating claims under Section 163A and under Section 166 of the Act, observed that even in cases under Section 166 of the Act, the principle underlined in Section 163A and second schedule can be borrowed with operative (maximum) multiplier. For this proposition, the Court has placed reliance on an English decision, Davies & Anr. Vs. Powell Duffryn Associated Collieries, Limited (1942 AC 601). The Court held:
"41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the table above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in (13 of 21) [CMA-2493/2011] the Second Schedule of the MV Act [extracted in Column (5) of the table above]; and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation [set out in Column (6) of the table above]. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable.
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
In this view of the matter, I am at loss to say that if multiple method can be applied vis-à-vis a claim under Section 166 for awarding just compensation within the meaning of Section 168 of the Act, then why second schedule be treated as insignificant and inapplicable to determine just and fair reparation in case of total permanent disablement/total partial disablement. Courts, while dealing such matters, are expected to act benevolently with pragmatic approach by shunning purely (14 of 21) [CMA-2493/2011] technical, idealistic and pedantic posture. This sort of approach is also conducive to the aims and objects of beneficent provisions contained in this behalf under the Act. With this finding, decks are cleared for appreciating the grievances of the appellant by relying on second schedule of the Act as guiding factor.
19. Although permanent disability certificate is a zerox copy, but if it is marked as exhibit (Ex.186) by the learned Tribunal, then the same ought not to have been completely discarded by it. As per definition of "qualified medical practitioner" under Section 2(1)(i) of the Act of 1923, unquestionably, author of the certificate (Ex.186), a neurosurgeon, may be of a private hospital, falls within its ambit. In Raj Kumar (supra), a verdict of Supreme Court, on which reliance is placed by both the parties, learned counsel for the respondents have laid emphasis on following observations:
"The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical (15 of 21) [CMA-2493/2011] evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
Per contra, learned counsel for the appellant has placed heavy reliance on following observations:
(16 of 21) [CMA-2493/2011] "In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate."
20. Upon construing the ratio decidendi of the judgment in Raj Kumar (supra), in my view, logically a disability certificate of an expert doctor has to yield before the certificate given by duly constituted medical board. However, it is also very much desirable that a disability certificate issued by a qualified medical practitioner should not be completely ignored or discarded. True it is that author of the certificate has not appeared in the witness box to prove its contents and the certificate is a zerox copy but it is not the case of respondents that same is spurious. Therefore, taking a benevolent view in the matter and by applying criteria for adjudging total permanent disability/total partial disability with the aid of Act of 1923, I feel inclined to place selective reliance on it for doing substantial justice in the matter. In the backdrop of available materials, which are MRI (17 of 21) [CMA-2493/2011] and MLC reports of the appellant (Exs.174&175) and other umpteen number of documents, coupled with his unimpeached testimony to the extent of injuries suffered, with objectivity, I deem it just and appropriate to adjudge his 50% permanent partial disability. This assessment is also otherwise satisfying the requirements of schedule appended to the Act of 1923 inasmuch as none of the injuries of the appellant are satisfying the requirements of Schedule I, Part I & II of the said Act.
21. Well it is true that this assessment is per se not satisfying the requirements of Schedule I, Part I & II of the Act of 1923, as none of the injuries suffered by the appellant are mentioned therein, however, cumulative effect of all the injuries presumably meet the criteria laid down under Section 4 (1)(c)(ii) of the said Act. Therefore, taking into account the aforesaid total partial disability, compensation for loss of future income to the appellant is calculated as per Schedule IV of the Act of 1923 by relying on ratio decidendi of Ram Kumar (supra) and worked-out as under:
Factor of 131.95 after rounding of taken as 132 multiplied by 50% of monthly income of the appellant.
132 x 2500 = Rs.3,30,000/- (Rupees three Lakhs thirty thousand only).
The learned Tribunal has awarded lumpsum amount of Rs.80,000 for the period of hospitalization of the appellant during treatment, therefore, after adjusting the same appellant is declared entitled for the enhanced amount of compensation (18 of 21) [CMA-2493/2011] under the head "Permanent Partial Disability & Future Loss of Income" to the tune of Rs.2,50,000/- (Rupees two Lakhs fifty thousand). While it is true that learned Tribunal has awarded compensation for loss of income of two months amounting to Rs.10,000/- but being a petty amount and not for future loss of income of the appellant the same is not liable to be adjusted against enhanced amount of reparation quantified and awarded.
22. As regards pain & sufferings, the protracted treatment of the appellant deserves due consideration. From the statements of the appellant, treatment continued for almost three years is clearly discernible, therefore, his pains, sufferings and agony during this period cannot be overlooked. It is quite perplexing that learned Tribunal has not given any credence to the uncontroverted statements of the appellant on this aspect. To meet the requirement of just compensation, it would be appropriate to place reliance on the judgments of Apex Court in the matter of Kumari Kiran and Jakir Hussain (supra), cited by learned counsel for the appellant. On overall objective analysis, I deem it just and proper to quantify reparation under this head to the tune of Rs.1,00,000 (Rupees one Lakh) and thereby declare appellant entitled for the same.
Accordingly, the enhanced amount of compensation is worked out as follows:
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Head Amount Enhanced/ Amount
awarded by Additional to be paid
learned amount
Tribunal quantified
Treatment in different 80,000 80,000
hospitals for 80 days
Medical expenses 64,000 64,000
Loss of income for two 10,000 10,000
months
Permanent Partial - 3,30,000 2,50,000
Disability & Future Loss inclusive of
of Income 80,000
awarded
Pain, sufferings and - 1,00,000 1,00,000
mental agony during
three years' treatment.
Total . . . 5,04,000
23. The second issue raised by the appellant, in the backdrop of facts and circumstances of the case, per se appears to be academic only. The respondent Insurance Company and the Corporation have already paid/deposited their share of compensation awarded by the learned Tribunal too has dissuaded me to alter/reverse the finding on issue No.2. Be that as it may, from the solitary testimony of appellant, it is rather difficult to impeach the finding of learned Tribunal about even contributory negligence of both the vehicles. Plea of the appellant, that accident occurred due to composite negligence of both the vehicles, is not substantiated by cogent evidence. The available documentary and oral evidence clearly and unequivocally suggest that both the vehicles have materially contributed for the cause (20 of 21) [CMA-2493/2011] of accident. There is nothing on record to show that accident has occurred as a result of combined effect of negligence by drivers of both the vehicles. Filing of charge-sheet for various offences under IPC against drivers of both the vehicles also sufficiently renders finding on issue No.2 recorded by learned Tribunal unassailable.
24. It would be appropriate to mention here that reversal of this finding cannot have any bearing on the claim of the appellant, inasmuch as, in the event of composite negligence, his entitlement is to sue both or any of the joint tort feathers and recover the compensation at his option from any of them. My aforesaid view is fortified by judgment in case of Khenyei (supra), wherein the Court held:
"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-à-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 (21 of 21) [CMA-2493/2011] 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."
25. Last but not the least, the grievance of the appellant is regarding rate of interest on compensation amount. In my opinion, the rate of interest on compensation amount determined and allowed by the learned Tribunal is inadequate and, therefore, same is liable to be enhanced to 7.5% per annum and the appellant is declared entitled for aforementioned rate of interest on the enhanced amount of compensation from the date of filing of claim petition and shall also be paid enhanced amount of interest arrears on the amount quantified and awarded by the learned Tribunal. The respondent Insurance Company and the Corporation are accordingly directed to pay 50% amount of enhanced compensation each along with interest @7.5% per annum to the appellant from the date of filing of application as well as enhanced amount of arrears of interest equally on the amount awarded by learned Tribunal.
The appeal of the appellant is, therefore, allowed in part, as indicated supra.
(P.K. LOHRA),J Powered by TCPDF (www.tcpdf.org)