National Insurance Company Ltd. vs Sadik and Others

B. Sreenivas Gowda, J.

MFA. No. 4719/2011 is filed by the insurer of a Maruti van challenging the judgment and award passed by the Tribunal on the ground of negligence, consequential liability and quantum, whereas, MFA. No. 5624/2011 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.

As these two appeals are arising out of a common judgment and award passed by the Tribunal, they are heard together and disposed of finally by this common judgment with the consent of the learned counsel for the parties.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 22.1.2009 by involvement of a motor cycle bearing registration No. KA-05/EH. 8612 in which the claimant was traveling as a pillion rider and a Maruthi van bearing registration No. KA-02/P. 2872, the points that arise for consideration in these appeals are:

"1. Whether the Tribunal is justified in holding that accident has occurred only due to rash and negligent driving of Maruthi Van by its driver?

Whether in the event of this Court modifying the finding of the Tribunal on negligence, holding that the accident has occurred due to contributory negligence of both the driver of Maruti van and the rider of two wheeler, the claimant is entitled to recover the entire compensation awarded by the Tribunal and additional compensation, if any, to be awarded by this Court, from the insurer of Maruti van, as contended by the learned Counsel for the claimant?

Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement?"

Sri. P.R. Ramesh, learned Counsel appearing for the insurer of Maruthi Van submits that the rider of motor cycle rode the motor cycle along with two pillion riders in a rash and negligent manner without possessing a valid licence to ride the motor cycle and thereby he had contributed more for the accident than the driver of the Maruthi Van. He submits that even quantum of compensation awarded by the Tribunal is on the higher side. The learned Counsel further submits, in the event of this Court upholding the contention advanced by the insurer of Maruti van to the effect that accident has occurred due to contributory negligence on the part of both the driver of Maruti van and the rider of two wheeler, the liability against the insurer of Maruti van may be restricted to the extent of negligence contributed by the driver of the Maruti van. Therefore, he prayed for allowing the appeal filed by the insurer of the Maruti van and dismissing the appeal filed by the claimant.

Sri. N.M. Handral, learned Counsel appearing for the claimant submits that the insurer except contending that the rider of motor cycle had also contributed to the accident having not possessed a valid driving licence to ride the two wheeler, has neither examined any witness on its behalf nor produced any documents substantiating its contention. He submits, the Tribunal considering the oral and documentary evidence on record was justified in holding that the accident has occurred due to the rash and negligent driving of the driver of the Maruti van, as such, there is no illegality or infirmity in the finding of the Tribunal on negligence warranting interference by this Court.

Regarding liability, learned Counsel submits, even in the event of this Court modifying the finding of the Tribunal on negligence, holding that the accident has occurred due to contributory negligence on the part of the driver of the Maruti van and the rider of two wheeler, claimant having traveled as a pillion rider in the two wheeler and being a third party to the accident, is entitled to recover the compensation awarded by the Tribunal and the additional compensation to be awarded by this Court, by any one of the tort feasors and in the instant case from the insurer of Maruti van and it is for the insurer of Maruti van to take steps to recover the amount to the extent of negligence contributed by the rider of two wheeler from the rider, owner and insurer of two wheeler.

Regarding quantum, he submits that the quantum of compensation awarded by the Tribunal is on lower side and therefore, he prays for allowing the appeal filed by the claimant and dismissing the appeal filed by the insurer.

Re. Points No. 1 and 2:

Heard the learned Counsel for the parties and perused the judgment and award of the Tribunal. The Police records would disclose that it is based on the registration of FIR and filing of charge sheet against the driver of Maruthi van, the claimant has filed the claim petition. In the very charge sheet, it is stated that the rider of two wheeler rode his two wheeler along with two pillion riders. The charge sheet was produced by the claimant himself and it was marked as Ex. P5. The claimant, who relied upon the said charge sheet for maintaining the claim petition before the Tribunal cannot contend that the contents thereof are false. Further, admittedly the rider of two wheeler did not possess a valid driving licence to ride two wheeler and without possessing any licence he rode the two wheeler along with two pillion riders and there is no evidence to show any of the said pillion riders was possessing licence to ride two wheeler. When such being the fact, it cannot be said that there was no negligence contributed by the rider of two wheeler in causing the accident. But the fact remains that the charge sheet is filed against the driver of Maruthi Van. Therefore considering the above material aspect of the matter and the fact that the charge sheet is filed against the driver of the Maruti van, the size and nature of the vehicles involved in the accident, the manner in which the accident has taken place, it is to be held that the negligence contributed by the driver of the Maruthi Van is more than the negligence contributed by the rider of two wheeler, which could be assessed at the rate of 80% and 20% respectively. Thus, the finding of the Tribunal on negligence is modified and point No. 1 is answered accordingly.

It is well settled principle of law that in the cases where accident has taken place by involvement of more than one vehicle and due to negligence contributed by the driver or rider of more than one vehicle, the injured claimant or legal heirs of the deceased who died in such accident, is/are entitled to recover compensation from any one of the tortfeasors and it is for the tortfeasor who is made to answer the claim, to take steps to make the driver, owner and insurer of other vehicles involved in the accident as parties to the claim petition and to recover the compensation from the rider, owner and insurer of such vehicle to the extent of negligence contributed by the rider or driver of that vehicle. Whereas, in the instant case, neither the claimant nor the insurer of Maruti van has made the rider, owner and insurer of the two wheeler involved in the accident as parties to the claim petition. It is not known who is the owner of the said two wheeler and whether it was insured and policy was in force as on the date of accident or not. Admittedly, the claimant traveled in the two wheeler which was ridden by the person who did not possess a valid licence to ride the two wheeler as pillion rider, along with another pillion rider. Thereby he had taken risk to travel in the two wheeler ridden by the person having no licence to ride the same along with another pillion rider. Considering the peculiar circumstance of the case, it is not proper to hold that the claimant is entitled to recover entire compensation from the insurer of the Maruti van following the law stated supra. Therefore, it is to be held that the claimant is entitled to recover 80% of the compensation from the insurer of the Maruti van. Points No. 1 and 2 are answered accordingly.

Re. Point No. 3:

As per the wound certificate Ex. P2, the claimant has sustained the following injuries:-

i) Lacerated wound over neck,

ii) Injury to nose,

iii) Lacerated wound over right neck with swelling and deformity and

iv) Multiple abrasion over right wrist.

Out of these injuries, injury No. (iii) i.e., fracture of right femur of upper 1/3rd is stated to be grievous in nature.

The injuries sustained and treatment taken by claimant are also evident from two discharge summaries produced at Exs. P6 and P7 and x-ray produced at Ex. P11, which are supported by the oral evidence of claimant and the doctor, who were examined as PWs. 1 and 2 respectively. P.W. 2 - doctor in his evidence has stated that the claimant has suffered disability of both physical and functional at 24% to the right thigh and hip, 21% to the right knee and 9% to the right ankle and to the whole body it is assessed at 27.5%.

Considering the nature of injuries sustained by the claimant Rs. 50,000/- awarded by the Tribunal towards pain and suffering is just and proper and there is no scope for interference with the same.

As Rs. 1,15,000/- awarded by the Tribunal towards medical expenses is based on the medical bills produced by the claimant, there is no scope for interference with the same.

The claimant was treated as inpatient for more than a month in Victoria Hospital and Deepak Hospital on two different occasions. Considering the same, a sum of Rs. 20,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and it does not call for interference.

The claimant claims to have been earning Rs. 4,000/- per month. Even in the absence of proof of income, considering his age as 30 years, the year of accident as 2009 and his avocation as daily wager, his income could be easily taken at Rs. 4,000/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of four months. Therefore a sum of Rs. 16,000/- is awarded towards loss of income during laid up period.

Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, Rs. 25,000/- awarded by the Tribunal towards loss of amenities is just and proper and it does not call for interference.

The income of claimant is assessed at Rs. 4,000/- per month. The appropriate multiplier to the age group of claimant is 17. The disability taken by the Tribunal at 20% to the whole body is sound and proper. Therefore, the loss of future income works out to Rs. 1,63,200/- (4000 x 20/100 x 12 x 17) and it is awarded as against Rs. 1,22,400/- awarded by the Tribunal.

Rs. 15,000/- awarded by the Tribunal towards future medical expenses is just and proper, which does not call for interference.

Thus, the claimant is entitled for the following compensation:-

Accordingly, both the appeals are allowed-in-part. The Judgment and Award passed by the Tribunal is modified. The claimant is entitled to recover 80% of the compensation awarded by the Tribunal amounting to Rs. 2,77,920/- (Rs. 3,47,400/- x 80/100) and 80% of the compensation awarded in this appeal by this Court amounting to Rs. 41,440/- (Rs. 51,800/- x 80/100), with interest at 6% p.a. from the date of claim petition till the date of realization from the owner and insurer of Maruti van.

The National Insurance Company, the appellant in MFA No. 4719/20111 is hereby directed to deposit 80% of the compensation awarded by the Tribunal and 80% of the compensation awarded by this Court, with interest, within two months from the date of receipt of a copy of this Judgment. From out of the additional compensation, 75% with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of three years with a right of option to withdraw interest periodically. Remaining 25% with proportionate interest is ordered to be released in favour of the claimant. The Tribunal while releasing 25% with proportionate interest is also directed to issue F.D., slip in favour of the claimant, so that he can withdraw F.D., amount on its maturity. The bank or post office in which amount will be kept in F.D., is directed to release the F.D., amount on its maturity without insisting for an order from the Tribunal.

No order as to costs.