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FA/1723/1997 28/ 28 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.1723 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE
R.M.CHHAYA Sd/-
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=====================================================
RAMCHANDRA
SINDJI CHAUHAN & 2 - Appellant(s)
Versus
ARVINDKUMAR
S MEHTA & 1 - Respondent (s)
=====================================================
Appearance
:
MR
SUNIL PARIKH for MR
RAJNI H MEHTA for the Appellants
MR YN RAVANI for Respondent(s) : 1,
None for Respondent(s) :
2,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 30/09/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.M.CHHAYA)
The
present appeal arises out of the common judgment and award dated
22.01.1997 passed by the Motor Accident Claims Tribunal (Main),
Surendranagar (the Tribunal) in M.A.C.P. Nos.340/93, 380/93 and
allied matters. The present appeal relates to claimant of M.A.C.P.
No.340/93, wherein the Tribunal has awarded Rs.14,92,684/- holding
the present appellants and respondent No.2, the insurance company,
jointly and severally liable, along with interest @ 12% from the
date of the application till realization.
The
facts arising out of the present appeal are that the claimant, a
surgeon by profession, was owner of an ambassador car bearing
Registration No. GAY-9044. The claimant had gone for pilgrimage to
Shree Nathdwara and was returning back at about 1.00 a.m. on
06.12.1992. The claimant was driving his vehicle on Ahmedabad-Rajkot
Highway and was proceeding towards Rajkot. It is the case of the
claimant that he was accompanied by his friend-Shri Haribhai
Khimjibhai Kothari, who was sitting on the front seat of the car
along with the claimant, and wife of the claimant, Dr. Smitaben
Arvindkumar Mehta, his son Niral Arvindkumar Mehta and wife of Shri
Haribhai Kothari were sitting on the rear seat of the car. It is the
case of the claimant that the truck owned by the present appellants
bearing Registration No.GJ-15-T-1081 was coming towards Ahmedabad
from Rajkot. It is particularly the case of the claimant that the
driver of the truck, appellant No.1 herein, was driving the truck on
the wrong side of the road in rash and negligent manner, with
excessive speed and with full light. It is the case of the claimant
that as soon as he saw the truck coming on the wrong side, he slowed
down the speed of his vehicle and took it further extreme on the
left of the road. It is the case of the claimant that because of the
excessive speed and careless and negligent driving of the truck,
appellant No.1 had lost control over the truck and dashed it with
the motorcar of the claimant resulting into accident. It is the case
of the claimant that all passengers travelling in the car received
serious injuries and the car was heavily damaged due to the said
accident. It is also the case of the claimant that front portion of
his car smashed in such a manner that the radiator, battery, right
head light, including A/c. machine of the car, etc., were completely
damaged.
It
is also the case of the claimant that because of the serious
injuries received by him, he had to undergo excessive treatment at
different hospitals and had also to undergo plastic surgery. It is
also the case of the claimant that because of the injuries received
in the said accident he, being a surgeon, has acquired partial
incapacity, which prevents the claimant from performing major
operations upon his patients and due to which the claimant has
suffered loss of income and has acquired permanent disability to
work with the same efficiency and zeal as a surgeon.
The
claimant, therefore, preferred the present claim petition being
M.A.C.P. No.340 of 1993 under Section 166 of the Motor Vehicles
Act, 1988 (the Act) and raised consolidated claim of Rs.24,30,000/-
under different heads such as loss of income, permanent disability
and other losses. The claimant adduced oral as well as documentary
evidence. The appellants herein as well as respondent
No.2-insurance company filed a joint written statement and defended
the claim so raised by the claimant. The Tribunal, after
appreciating the evidence so adduced before it, by the impugned
judgment, awarded Rs.14,92,684/- along with interest @ 12% from the
date of the application till realization.
It
may be noted that originally the present appeal was preferred by
the driver of the truck – appellant No.1, owner of the truck
– appellant No.2 as well as the present respondent No.2-Insurance
company. Thereafter this Hon’ble Court vide order dated 11.08.2008
passed in Civil Application No.2783 of 2008 permitted the original
appellant No.3-Insurance Company to be transposed as respondent
No.2 in the present appeal and hence, the present appeal is filed
by the original opponents i.e. the driver and the owner of the
truck.
Heard
Mr.Sunil Parikh, learned counsel, for Mr.R.H.Mehta for the
appellants and Mr.Y.N.Ravani, learned counsel for respondent No.1.
Mr.Parikh
for the appellants has taken us through the impugned judgment and
award as well as the panchnama (Exh.25), F.I.R. (Exh.113),
deposition of claimant-Dr. Arvindkumar Shantilal Mehta (Exh.35,),
deposition of Shri Haribhai Khimjibhai Kothari (Exh.49), deposition
of Shri Pramodbhai Vasantbhai Vora, the insurance surveyor
(Exh.138), income-tax returns of the claimant (Exh.39 & Exh.40),
depositions of driver and cleaner recorded by the police in the
criminal case (Exh.116 and Exh.117) as well as photographs (Exh.137
& Exh.138). It was submitted that the Tribunal has erred in
coming to the conclusion that there is 100% negligence on the part
of the driver of the truck. It was further submitted that the
Tribunal has not considered the evidence on record and has arrived
at an erroneous finding to the effect that the truck was driven by
the driver on the wrong side. It was submitted that, therefore, the
Tribunal has erred in accepting the version of the claimant that the
driver of the truck was driving the truck on the wrong side of the
Ahmedabad-Rajkot Highway at an excessive speed. It was submitted
that as the very basis of the claim awarded is on a wrong premise
and hence the conclusion arrived at by the Tribunal as regards 100%
negligence is therefore not only without basis but dehors the
evidence on record. It was submitted that the ocular evidence in the
form of deposition of the claimant, his wife, his son as well as his
friend is contrary to the documentary evidence in the form of
panchnama (Exh.25) as well as F.I.R. (Exh.113), given by the son of
the claimant, which is given and recorded immediately after the
accident occurred. It was submitted that thus, in order to justify
the claim as claimed for in the petition, the claimant and the
witnesses examined for and on behalf of the claimant have changed
the version as regards the manner in which the accident had occurred
including most important aspect as regards the place at which the
accident had occurred. It was therefore submitted that the
conclusion arrived at by the Tribunal as regards 100% negligence of
the driver of the truck being erroneous and, therefore, the appeal
deserves to be accepted by this Hon’ble Court on that count.
Relying
upon the documents Exh.39 and Exh.40, being the Income Tax returns
of the claimant, it was submitted that the income assessed by the
Tribunal at Rs.16,000/- p.m. is not supported by any evidence on
record. It was further submitted that on examination of the profit
and loss account as submitted by the claimant, the income of the
claimant by adopting any method of calculation would not be more
than Rs.8,000/-. It was submitted that thus, the figure of
Rs.16,000/- arrived at by the Tribunal is merely a guesswork on the
part of the Tribunal. It was submitted that the claimant has not
been able to prove the disability acquired by the claimant because
of the accident.
It
was submitted that on correct appreciation of photographs at
Exh.137 and 138 it would be clear that the driver of the truck was
not driving the truck on the wrong side. It was submitted that if
the said fact would have been true the accident would have occurred
in a different manner. It was submitted that as is evident from the
evidence on record that the driver of the truck did his best to
avoid the accident and made an attempt to stop the vehicle by
applying the break with special efforts but, as the car of the
claimant as being driven in an excessive speed, dashed with the
truck whereby the front wheels of the driver side of the truck were
broken, including its excel and the truck became stationery, in
non-mobile condition.
Attention
was invited to the fact that as can be seen from the evidence on
record there were break marks of the truck visible from a distance
of 30 mtrs. It was further submitted that even if one comes to the
conclusion that the driver of the truck was negligent he cannot be
held to be 100% negligent. It was submitted that the Tribunal ought
to have held that the accident occurred due to composite negligence
of both the drivers wherein negligence of the driver of the car was
greater than that of the truck driver.
It
was also submitted that this Hon’ble Court has rightly permitted
the present respondent No.2-Insurance Company to be transposed as
respondent No.2 in the present appeal, as per order dated
11.08.2008 passed in Civil Application No.2783 of 2008. It was
submitted that the said order is in accordance with law. Reliance
was also placed upon the judgment of the Apex Court in case of V.
Subbulakshmi and Ors. v. S. Lakshmi and Anr., AIR 2008 SC 1256.
It was further submitted that the claimant have not challenged the
said order and, therefore, the said order has attained finality.
It
was further submitted that thus, the Tribunal has wrongly come to
the conclusion that the driver of the truck is 100% negligent and
the income, which is estimated by the Tribunal, is based on no
evidence but only on guesswork on the part of the Tribunal and,
therefore, the quantum, as calculated for coming to the conclusion
that the claimant is entitled to claim of Rs.12,48,000/- towards
future loss of income due to permanent disability resultantly has
wrongly passed the impugned judgment and award of Rs.14,92,684/-.
It was, therefore, submitted that the appeal deserves to be
accepted and allowed as prayed for.
As
against this, Mr.Ravani for the claimant assailed the impugned
judgment and award. It was submitted that no independent advocate
has appeared on behalf of the driver and the insurance company and
only with a view to raise contentions which are otherwise not
available to the insurance company and with a view to avoid the
claimant for getting benefit of benevolent scheme of the Act, the
insurance company got itself transposed as the respondent in the
present appeal. It was submitted that the present appeal is not
maintainable on behalf of the driver and owner of the truck.
It
was submitted that in fact before the Tribunal the driver, owner as
well as the insurance company have collectively defended the claim
petition and have in fact filed a joint written statement. It was
submitted that the present appeal is contrary to the provisions of
Sections 149 and 170 of the Act and on this ground alone the appeal
deserves to be dismissed. It was further submitted that the
Tribunal has not committed any error in coming to the conclusion
that the truck was coming from the wrong side. It was submitted
that looking to the photographs (Exhs.136-137) it is clear that the
driver of the truck was driving the truck at a very excessive speed
on wrong side which has resulted into complete damage of the car.
It was submitted that also it is clear from the said photographs
that the driver of the truck had crossed the white demarcated line
on the highway. It was therefore submitted that after correct
appreciation of evidence on record, the Tribunal has opined that
the truck was being driven on the wrong side. It was submitted that
the Tribunal has taken into consideration this fact and has rightly
come to the conclusion that the driver of the truck was the solely
negligent for the accident. It was, however, submitted that even if
any contributory negligence is to be attributed to the claimant,
looking to the manner in which the accident has occurred, and
taking into consideration the size of the truck, the claimant
cannot be attributed with contributory negligence of more than 10%.
It was also submitted that bare reading of the panchnama, F.I.R.,
as well as the statements of the driver and cleaner recorded by the
police establish the fact beyond the doubt that the driver of the
truck was driving such a heavy and huge vehicle at an excessive
speed in rash and negligent manner on the wrong side of the road.
It was, therefore submitted that the conclusion arrived at by the
Tribunal does not call for any interference by this Hon’ble Court.
It
was submitted that over and above this, in order to see that the
truth does not come on record even after the written statements
filed by the driver and owner of the truck, they have not been
examined before the Tribunal and, therefore, an adverse inference
is required to be drawn by this Hon’ble Court.
Relying
upon the oral testimony of the witnesses as well as medical
evidence on record it was submitted that the claimant was renowned
surgeon at Rajkot and had sizable practice as a surgeon. However,
because of the accident the claimant has acquired permanent
disability, which precludes him from conducting major operations
and he has to depend on outsourcings of other surgeons, which has
resulted into sizable loss of income. It was also submitted that
even before the occurrence of the accident, the claimant had an
established practice as a surgeon, which is reflected in the income
tax returns (Exh.39 and Exh.40). Attention was also invited to the
deposition of the claimant as well as his wife-Dr.Smitaben and the
doctors, who had treated the claimant and submitted that the
accident has adversely affected the professional capability of the
claimant. It was submitted that the Tribunal has rightly read and
appreciated those piece of evidence and has rightly assessed the
income of the claimant. It was submitted that the Tribunal has also
taken into consideration the prospective income and has rightly
come to the conclusion that the income of the claimant is
Rs.16,000/- p.m. It was therefore, submitted that the award of the
Tribunal in favour of the claimant under the head of future loss of
income is legal and proper. It was therefore, submitted that the
appeal is devoid of any merits and deserves to be dismissed.
We
have examined the record and proceedings of the case in context of
the rival submissions made by both the sides.
The
claimant is examined at Exh.35. Upon reading the deposition of the
claimant we find in his examination-in-chief that he has stated the
manner in which the accident had taken place and has maintained that
the driver of the truck was driving the truck at an excessive speed
and with full light on the wrong side of the road. He has further
averred that when he saw the truck he slowed down his car and took
his car further left of the road still, however, the truck collided
with his car and he became unconscious. He has also stated that the
nature of injuries received upon his person in detail and has also
mentioned the treatment taken by him in different hospitals as
indoor patient, including the fact that he had to undergo plastic
surgery of his right eye. He has also stated that before the
accident he used to undergo major surgeries but because of the
accident he has acquired permanent disability to such an extent that
he is not able to undertake even minute surgery and has to outsource
the services of other surgeons. He has stated that his monthly
income was to the tune of Rs.20,000/- from his profession as a
doctor. He has also narrated that during the course of accident he
has lost his valuable watch of Rado company and has also lost his
spectacles, which is of day and night anti-coloured lences. He has
also stated that because of the accident he acquired disability
which has affected his future income. He has also stated the manner
in which the car has been damaged to almost non-use.
In
his cross-examination, we find that he has stated that his income
from the period 01.04.1991 to 31.03.1992 from medical practice was
Rs.46,685/- and the income of clinic was Rs.1,59,160/-, whereas the
income for the period from 01.04.1992 to 31.03.1993 from medical
practice was to the tune of Rs.51,085/- and the income of clinic
was Rs.1,51,000/-. He has stood the test of cross-examination so
far as his disability to conduct the major operations. In his
further cross-examination we find that he has based his case in so
far as the present income as well as future income is concerned. We
further find that he has admitted the fact that he cannot clearly
say that whether he had applied break of his car or not.
The
claimant has also examined his friend and one of the
co-travellers-Shri Haribhai Khimjibhai Kothari, who was sitting on
the front seat of the car at the time of the accident as claimant
witness No.2 (Exh.49). On reading the evidence of the said witness
we find that he has narrated in his examination-in-chief the
manner in which the accident had taken place and has maintained
that the driver of the truck was driving the truck at an excessive
speed on the wrong side and because of the negligence of the driver
of the truck, the truck collided with the car. He has also narrated
the treatment taken by him as well as his own income from business.
He has also stated in his cross-examination that he has
acquired 50% permanent disability in relation to his ear and 15%
permanent disability in relation to his legs. In his
cross-examination we find that he has stood the test of
cross-examination in relation to his income is concerned.
Similarly
we find that the claimant has also examined Dr.Smitaben Arvindkumar
Mehta, wife of the claimant (Exh.72), as well as Shri Niral
Arvindkumar Mehta, son of the claimant (Exh.111), who is the
original complainant of F.I.R. (Exh.113). Both these witnesses have
maintained the manner in which the accident had taken place as well
as the fact that the driver of the truck was driving the truck at
an excessive speed, on wrong side of the road and the treatment
taken by the claimant as well as the injured persons in the
accident.
In
cross-examination of witness-Shri Niral Arvindkumar Mehta we find
that he has stated that he considered the fact that the truck was
coming from the wrong side to be an important factor, however, as
he was in tension when he lodged the F.I.R., he could not state
that fact in the complaint.
Over
and above this, the claimant has also examined Dr.Bhaumik N.
Bhayani (Exh.76), who had treated the claimant on being transferred
to Limbdi Hospital to Rajkot and conducted operation upon the
claimant. Upon reading the evidence of this witness we find that he
had noticed major injury on the right eye of the claimant. He had
also noticed injuries on the nose and face of the claimant, which
has resulted into deface of the face of the claimant. This witness
has opined that the claimant has acquired 21% permanent disability
and even in his cross-examination we find that he has stated that
such permanent disability is detrimental to day-to-day professional
activities of the claimant as a doctor.
The
claimant has examined Dr. Mahesh Pranlalbhai Maru, an orthopedic
surgeon (Exh.82), who had operated the claimant and has opined that
the claimant has acquired 20% permanent disability on the right
hand and overall permanent disability to the tune of 12%.
The
claimant has also examined the ophthalmologist Dr.Kishor
Jatashankar Doshi (Exh.90), who had treated the claimant for the
injuries on the left eye. We find that this witness has opined that
the claimant has acquired 20% permanent disability so far as the
capability of eye is concerned.
It
may also be noted that the claimant has examined Dr.Harshad
Shantilal Mehta (Exh.117), the physician having his hospital
at Vadodara, who had treated the claimant. However, upon reading
the deposition of the said witness we find that except the fact
that he examined and treated the claimant for his ailment of the
chest because of the accident, the claimant has not been able to
take his case further.
Upon
reading the evidence of claimant witness, Shri Pramodbhai
Vasantbhai Vora, the insurance surveyor (Exh.138), we find that he
had surveyed the damaged car as well as visited the place of
accident and has submitted his report estimating the loss. In his
cross-examination we find that he had visited the place of accident
and had taken photographs of the truck trailer. We also find that
he has clearly stated in his cross-examination that the truck
trailer was not able to move from the place of the accident.
The contention raised by the learned advocate for the claimant that
the insurance company has been wrongly transposed as the respondent
in the present appeal as aforesaid and the appeal is not
maintainable at the behest of the owner and the driver of the truck.
It is an admitted position that the insurance company has been
permitted to be transposed as the respondent in the present appeal
and, therefore, in the array of the present appeal the owner and the
driver are the only appellants. It would be worthwhile to mention
that Supreme Court of India while examining whether the owner of the
vehicle can prefer an appeal and whether Section 173 of the Act
confers any right to any aggrieved person to prefer an appeal has
decided in the case of V. Subbulakshmi and Ors. Vs. S. Lakshmi
and Anr. (supra) in Paragraph Nos.8 to 14 as under:
“8.
We may at the outset notice that the High Court was although of the
opinion that no appeal would be maintainable at the instance of an
insurance company unless permission of the court was obtained by it
in terms of Section 170 of Act, observed that the owner of the
vehicle being an appellant, the appeal would be maintainable at his
instance.
9. The relevant statutory
provisions, being Sections 149(2), 170 and 173 may be noticed by us,
which are as under :
“149.
(2) No sum shall be payable by an insurer under sub-section (1) in
respect of any judgment or award unless, before the commencement of
the proceedings in which the judgment of award is given the insurer
had notice through the Court or, as the case may be, the Claims
Tribunal of the bringing of the proceedings, or in respect of such
judgment or award 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 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 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 to by conditions of war,
civil war, riot or civil commotion; or
(b) that the policy is void on
the ground that it was obtained by the nondisclosure of a material
fact or by a representation of fact which was false in some material
particular.
Section 170 – Impleading insurer
in certain cases – Where in the course of any inquiry, the Claims
Tribunal is satisfied that –
(a) there is collusion between
the person making the claim and the person against whom the claim is
made, or
(b) the person against whom the
claim is made has failed to contest the claim, it may, for reasons to
be recorded in writing, direct that the insurer who may be liable in
respect of such claim, shall be impleaded as a party to the
proceeding and the insurer so impleaded shall thereupon have, without
prejudice to the provisions contained in sub-section (2) of section
149, the right to contest the claim on all or any of the grounds that
are available to the person against whom the claim has been made.
Section 173 – Appeals – (1)
Subject to the provisions of sub-section (2) any person aggrieved by
an award of a Claims Tribunal may, within ninety days from the date
of the award, prefer an appeal to the High Court:
Provided that no appeal by the
person who is required to pay any amount in terms of such award shall
be entertained by the High Court unless he has deposited with it
twenty-five thousand rupees or fifty per cent, of the amount so
awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High
Court may entertain the appeal after the expiry of the said period of
ninety days, if it is satisfied that the appellant was prevented by
sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against
any award of a Claims Tribunal if the amount in dispute in the appeal
is less than ten thousand rupees.”
10. The maintainability of an
appeal by the Insurance Company together with the owner of the
vehicle came up for consideration before this Court in Narendra Kumar
and Another Vs. Yarenissa and Others [(1998) 9 SCC 202], wherein it
was clearly held that an appeal by the owner of the vehicle is
maintainable despite the fact that in terms of an Award, he is to be
reimbursed by the insurance company, stating;
“6……If the award has
gone against the tortfeasors it is difficult to accept the contention
that the tortfeasor is not “an aggrieved person” as has
been held by some of the High Courts vide Kantilal and Bros. v.
Ramarani Debi, New India Assurance Co. Ltd. v. Shakuntla Bai, Nahar
Singh v. Manohar Kumar, Radha Kishan Sachdeva v. Fit. Lt. L.D. Sharma
merely because under the scheme of Section 96 if a decree or award
has been made against the tortfeasors the insurer is liable to answer
judgment “as if a judgment-debtor”. That does not snatch
away the right of the tortfeasors who are jointly and severally
liable to answer judgment from preferring an appeal under Section
110-D of the Act. If for some reason or the other the claimants
desire to execute the award against the tortfeasors because they are
not in a position to recover the money from the insurer the law does
not preclude them from doing so and, therefore, so long as the award
or decree makes them liable to pay the amount of compensation they
are aggrieved persons within the meaning of Section 110-D and would
be entitled to prefer an appeal. But merely because a joint appeal is
preferred and it is found that one of the appellants, namely, the
insurer was not competent to prefer an appeal, we fail to see why the
appeal by the tortfeasor, the owner of the vehicle, cannot be
proceeded with after dismissing or rejecting the appeal of the
insurer. To take a view that the owner is not an aggrieved party
because the Insurance Company is liable in law to answer judgment
would lead to an anomalous situation in that no appeal would lie by
the tortfeasors against any award because the same logic applies in
the case of a driver of the vehicle. The question can be decided a
little differently. Can a claim application be filed against the
Insurance Company alone if the tortfeasors are not the aggrieved
parties under Section 110-D of the Act? The answer would obviously be
in the negative. If that is so, they are persons against whom the
claim application must be preferred and an award sought for otherwise
the insurer would not be put to notice and would not be liable to
answer judgment as if a judgment-debtor. Therefore, on first
principle it would appear that the contention that the owner of a
vehicle is not an aggrieved party is unsustainable.”
It was furthermore held;
“7. For the reasons stated
above, we are of the opinion that even in the case of a joint appeal
by insurer and owner of offending vehicle if an award has been made
against the tortfeasors as well as the insurer even though an appeal
filed by the insurer is not competent, it may not be dismissed as
such. The tortfeasor can proceed with the appeal after the
cause-title is suitably amended by deleting the name of the insurer.”
11. However, another Bench of
this Court in Chinnama George and Others Vs. N.K. Raju and Another
[(2000) 4 SCC 130] opined :
“6. Admittedly, none of the
grounds as given in Sub-section (2) of Section 149 exist for the
insurer to defend the claims petition. That being so, no right
existed in the insurer to file appeal against the award of the Claims
Tribunal. However, by adding N.K. Raju, the owner as co-appellant, an
appeal was filed in the High Court which led to the impugned
judgment. None of the grounds on which insurer could defend the
claims petition was the subject-matter of the appeal as far as the
insurer is concerned. We have already noticed above that we have not
been able to figure out from the impugned judgment as to how the
owner felt aggrieved by the award of the Claims Tribunal. The
impugned judgment does not reflect any grievance of the owner or even
that of the driver of the offending bus against the award of the
Claims Tribunal. The insurer by associating the owner or the driver
in the appeal when the owner or the driver is not an aggrieved person
cannot be allowed to mock at the law which prohibit the insurer from
filing any appeal except on the limited grounds on which it could
defend the claims petition. We cannot put our stamp of approval as to
the validity of the appeal by the insurer merely by associating the
insured. Provision of law cannot be undermined in this way. We have
to give effect to the real purpose to the provision of law relating
to the award of compensation in respect of the accident arising out
of the use of the motor vehicles and cannot permit the insurer to
give him right to defend or appeal on grounds not permitted by law by
a backdoor method. Any other interpretation will produce unjust
results and open gates for the insurer to challenge any award. We
have to adopt purposive approach which would not defeat the broad
purpose of the Act. Court has to give effect to true object of the
Act by adopting purposive approach.
7. Sections 146, 147, 149 and
173 are in the scheme of the Act and when read together mean : (1) it
is legally obligatory to insure the motor vehicle against third party
risk. Driving an uninsured vehicle is an offence punishable with an
imprisonment extending up to three months or the fine which may
extend to Rs. 1,000/- or both; (2) Policy of insurance must comply
with the requirements as contained in Section 147 of the Act; (3) It
is obligatory for the insurer to satisfy the judgments and awards
against the person insured in respect of third party risks. These are
Sub-sections (1) and (7) of Section 149. Grounds on which insurer can
avoid his liability are given in Sub-section (2) of Section 149.
8. If none of the conditions as
contained in Sub-section (2) of Section 149 exist for the insurer to
avoid the policy of insurance he is legally bound to satisfy the
award, he cannot be a person aggrieved by the award. In that case
insurer will be barred from filing any appeal against the award of
the Claims Tribunal.”
12. In Chinnamma George, the
owner did not challenge the findings of the Tribunal that the bus was
being driven by the driver in a rash and negligent manner. It was
therefore, held that the owner was not an aggrieved person to
maintain an appeal. It was in the aforementioned context this Court
observed that none of the grounds as laid down under sub-Section (2)
of Section 149 of the Act having been satisfied, an appeal by the
Insurance Company was not maintainable, observing that an insurer
having a limited area to defend the claim petition, it cannot
circumvent the same by associating itself with the owner/driver in an
appeal when the owner/ driver is not an aggrieved person and, thus,
cannot be allowed to mock at the law.
13. In the instant case, the
owner of the bus was an aggrieved person. He could maintain an appeal
of his own. Section 173 of the Act confers a right on any aggrieved
person to prefer an appeal from an award.
14. In the
present case, it is not necessary for us to go into the larger
question as to whether having regard to the bar contained in
sub-Section (2) of Section 149 of the Act, the second respondent
could have preferred an appeal questioning the quantum of
compensation, as the High Court held that the appeal, even after
deletion of the second respondent from the array of the parties, the
appeal preferred by the first respondent was maintainable.”
We, therefore, find that the owner and driver of the truck being
aggrieved persons have right to file this appeal. Therefore, the
contention raised by the learned advocate for the claimant that
the appeal is not maintainable deserves to be negatived.
Before
reverting to decide the contentions raised by both the sides, we
deem it appropriate to examine as to how and where the accident had
occurred. Upon reading panchnama at Exh.25, which was prepared by
the police in connection with the investigation carried out by it,
in furtherance to the F.I.R. (Exh.113) lodged by the son of the
claimant, we find that as recorded in the panchnama the truck was
lying on Rajkot-Ahmedabad highway near Limbdi town with its
front side towards East. It is an admitted position that the
Ahmedabad-Rajkot highway is from East to West. On re-appreciating
the photographs(Exh.137 & Exh.138), we find that the truck which
was coming from Rajkot side having its front towards the East was on
the left hand side on the highway. Therefore, the finding arrived at
by the Tribunal based on the oral testimony of the claimant and the
witnesses examined on behalf of the claimant that the truck was
coming on the wrong side is erroneous. However, on further reading
of the panchnama as well as on further examination of the
photographs of the truck, which have produced by the witness of the
claimant Shri Pramodbhai Vasantbhai Vora, being the insurance
surveyor, we find that the truck had crossed the dividing white
demarcation on the road only to some extent on front side. On
further appreciating this piece of evidence we find that the impact
of the accident upon both the vehicles was of such a grave nature
that the front wheels of the driver side of the truck were
broken and the front portion of the tuck had tilted towards the
other side of the road and crossed the white demarcation line.
Similarly, we find that the body of the car had got completely
sliced down on front half portion resulting into almost completely
breakage of the body of the car, the engine, A/C. and steering.
We
also find that because of the impact of the accident the car was
badly damaged in an irreparable situation. Taking into
consideration the above facts, the only possibility is that the
truck as well as the car were being driven on their right side i.e.
on left hand side. However, they were driven in rash and negligent
manner. We also find from the evidence on record that there were
break marks of the truck for a distance of about 13 mtrs., which
establish the fact beyond doubt that even though the driver of the
truck intended to stop the vehicle he could hardly did that and
could not avoid the accident. Similarly we also find that looking
to the damage received to the car, the claimant, who incidentally
was driving the vehicle, could not control the same as there are no
break mark of the car. Thus, we find that the very basis of the
finding of the Tribunal that the truck was being driven on wrong
side is an apparent error committed by the Tribunal. However, we
are mindful of the fact that the truck with a trailer loaded with a
container on it, admittedly a heavy vehicle has to be driven in a
careful manner.
On
re-appreciation of the evidence on record in relation to the
occurrence of the accident and its impact upon the two vehicles, it
cannot be said that the driver of the truck was alone negligence for
the occurrence of the accident. We find from the evidence on record
and more particularly on examining the photographs which establishes
the fact that the car is completely smashed, it has dashed with the
truck with force. We have also gathered from the evidence led by the
claimant that the claimant as well as his wife, who was sitting on
the rear seat of the car saw the truck coming from the other side
(according to the claimant from the wrong side) and, therefore, the
claimant, who was driving the car took the car further left of the
road. However, from the evidence it transpires that the manner in
which the car is damaged it cannot be believed that the claimant, as
driver of the car, acted as a reasonable and reason man to avoid the
possibility of collusion with the truck and hence, from the evidence
it is clearly borne out that the claimant, as driver of the car, was
also careless. We, therefore, find that the conclusion arrived at by
the Tribunal to the effect that the driver of the truck alone was
negligent is erroneous.
At this juncture it would be appropriate to refer to the judgment of
the Apex Court in the case of Municipal Corporation of Greater
Bombay Vs. Laxman Iyer & Anr., (2003) 8 SCC 731 wherein word
“contributory negligence” has been defined and it has
been held as under:
“6.
A plea which was stressed strenuously related to alleged contributory
negligence. Though there is no statutory definition, in common
parlance ‘negligence’ is categorised as either composite or
contributory. It is first necessary to find out what is a negligent
act. Negligence is omission of duty caused either by an omission to
do something which a reasonable man guided upon those considerations
who ordinarily by reason of conduct of human affairs would do or
obligated to, or by doing something which a prudent or reasonable man
would not do. Negligence does not always mean absolute carelessness,
but want of such a degree of a care as is required in particular
circumstances. Negligence is failure to observe, for the protection
of the interests of another person, the degree of care, precaution
and vigilance which the circumstances justly demand, whereby such
other person suffers injury. The idea of negligence and duty are
strictly correlative. Negligence means either subjectively a careless
state of mind, or objectively careless conduct. Negligence is not an
absolute term, but is a relative one; it is rather a comparative
term. No absolute standard can be fixed and no mathematically exact
formula can be laid down by which negligence or lack of it can be
infallibly measured in a given case. What constitutes negligence
varies under different conditions and in determining whether
negligence exists in a particular case, or whether a mere act or
course of conduct amounts to negligence, all the attending and
surrounding facts and circumstances have to be taken into account. It
is absence of care according to circumstances. To determine whether
an act would be or would not be negligent, it is relevant to
determine if any reasonable man would foresee that the act would
cause damage or not. The omission to do what the law obligate or even
the failure to do anything in a manner, mode or method envisaged by
law would equally and per se constitute negligence on the part of
such person. If the answer is in the affirmative, it is a negligent
act. Where an accident is due to negligence of both parties,
substantially there would be contributory negligence and both would
be blamed. In a case of contributory negligence, the crucial question
on which liability depends would be whether either party could, by
exercise of reasonable care, have avoided the consequence of other’s
negligence. Whichever party could have avoided the consequence of
other’s negligence would be liable for the accident. If a person’s
negligent act or omission was the proximate and immediate cause of
death, the fact that the person suffering injury was himself
negligent and also contributed to the accident or other circumstances
by which the injury was caused would not afford a defence to the
other. Contributory negligence is applicable solely to the conduct of
a plaintiff. It means that there has been an act or omission on the
part of the plaintiff which has materially contributed to the damage,
the act or omission being of such a nature that it may properly be
described as negligence, although negligence is not given its usual
meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is
now well settled that in the case of contributory negligence, Courts
have power to apportion the loss between the parties as seems just
and equitable. Apportionment in that context means that damages are
reduced to such an extent as the Court thinks just and equitable
having regard to the claim shared in the responsibility for the
damage. But in a case where there has been no contributory negligence
on the part of the victim, the question of apportionment does not
arise. Where a person is injured without any negligence on his part
but as a result of combined effect of the negligence of two other
persons, it is not a case of contributory negligence in that sense.
It is a case of what has been styled by Pollock as injury by
composite negligence. (See Pollock on Torts, 15th Edn. P. 361).
7. At this
juncture, it is necessary to refer to the ‘doctrine of last
opportunity’. The said doctrine is said to have emanated from the
principle enunciated in Devies v. Mann (1842 (10) MandW 546) which
has often been explained as amounting to a rule that when both
parties are careless the party which has the last opportunity of
avoiding the results of the other’s carelessness is alone liable.
However, according to Lord Denning it is not a principle of law, but
test of causation. (See Davies v. Swan Motor Co. (Swansea) Ltd. (1949
(2) KB 291). Though in some decisions, the doctrine has been applied
by Courts, after the decisions of the House of Lords in The Volute
(1922 (1) AC 129) and Swadling v. Cooper (1931 AC 1), it is no longer
to be applied. The sample test is what was the cause or what were the
cause of the damage. The act or omission amounting to want of
ordinary care or in defiance of duty or obligation on the part of the
complaining party which conjointly with the other party’s negligence
was the proximate cause of the accident renders it one to be the
result of contributory negligence.”
We find that both the driver of the truck as well as the claimant –
being the driver of the car are composite negligent. Considering
the evidence on record and taking into consideration the size of the
vehicles involved, we find that negligence of the claimant in the
instant case can reasonably be fixed at 25%.
Cumulatively
taking into consideration the evidence led by the claimant in the
photographs (Exh.137 and Exh.138) as well as keeping in mind the
fact that the claimant is a qualified surgeon, we find that the
contention raised by the appellants that the Tribunal has not
appreciated the correct income of the claimant and has misread the
documentary evidence (Exh.39 and Exh.40) is not believable. The
claimant has been able to show the income, which is derived from his
profession as surgeon as well as his clinic. We, therefore, find
that the gross income, which is reflected in the income-tax returns
(Exh.39 and Exh.40) is to be taken into consideration while
determining the income of the claimant. On appreciating the
depositions of doctors Exh.76, Exh.82 and Exh.90, we also find that
because of the impact of the accident the claimant has acquired
professional disability and such disability precludes him from
performing major operations which, as per the evidence, he used to
undertake during his course of profession before the date of
accident. At this juncture, it would be advantageous to refer to the
judgment of the Apex Court in the case of Yadavakumar Vs.
Divisional Manager, National Insurance Company Limited & Ors.,
(2010) 10 SCC 341 wherein the Apex Court has, while determining the
quantum of compensation has observed thus:
“17. The High Court and
the Tribunal must realize that there is a distinction between
compensation and damages. The expression compensation may include a
claim for damages but compensation is more comprehensive. Normally
damages are given for an inquiry which is suffered, whereas
compensation stands on a slightly higher footing. It is given for the
atonement of injury caused and the intention behind grant of
compensation is to put back the injured party as far as possible in
the same position, as if the injury has not taken place, by way of
grant of pecuniary relief. Thus, in the matter of computation of
compensation, the approach will be slightly more broad based than
what is done in the matter of assessment of damages. At the same time
it is true that there cannot be any rigid or mathematical precision
in the matter of determination of compensation.”
Keeping in mind the principles of perspective income and taking into
consideration the age of the claimant at the time of accident it can
safely be assessed that the income of the claimant to be Rs.12,000/-
p.m. Considering 50% as permanent disability to the claimant the loss
to the claimant per month, due to permanent disability would come to
Rs.6,000/- and the yearly it would come to Rs.72,000/-. Taking into
consideration the age of the claimant, being 49 years on the date of
accident, while calculating the future loss of income, multiplier 13
is to be applied and, therefore, the future loss to the claimant due
to permanent disability would come to Rs.9,36,000/- as against the
same the Tribunal has committed error in awarding Rs.12,48,000/-.
We
find that the compensation awarded under the other heads do not
require any elucidation in this judgment
as the same are not disputed by the appellants.
We
find that the the Tribunal has awarded interest @ 12% as per the
prevailing bank rate than, and the same requires to be maintained.
In
view of the foregoing, the claimant would be entitled to
compensation of Rs.11,80,684/- and by deducting 25% towards
contributory negligence on the part of the claimant, the claimant
would be entitled to net compensation of Rs.8,85,513/- along with
interest @ 12% p.a. from the date of the application.
The
appeal is partly allowed. Award stands modified accordingly. There
shall be no order as to costs.
Record
and proceedings be sent to the Tribunal forthwith.
Sd/-
[JAYANT PATEL,J]
Sd/-
[ R.M.CHHAYA, J]
***
Bhavesh*
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