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Judgment
Anand Byrareddy, J.—Heard learned counsel for the appellant-Insurance Company.
There is a delay of 40 days in filing all the appeals. For the reasons stated, delay is condoned. The applications are allowed.
The present appeals are heard and disposed of at the stage of hearing on interlocutory application.
The appellant is common in these three appeals, namely, it is the North West Road Transport Corporation.
It is the case of the appellant that the respondents-claimants in these appeals were said to be the occupants of a three wheeler vehicle popularly known as a ''Tom Tom'' and the respondent No. 1 in the third of these appeals is sated to be a pedestrian, who was injured in the accident. It was alleged that the bus belonging to the appellant had dashed against the Tom Tom resulting in injuries. Respondents-claimants in the first two of these appeals and the pedestrian in the third of these appeals were also said to have been injured. The Tribunal after having addressed the question as to which of the drivers was at fault in having caused the accident has referred to the first information report regarding the accident and the chargesheet that is said to have been filed in a case preferred against the driver of the bus and has concluded that it was the driver of the bus, who was negligent. This according to the learned counsel is misleading and is not an accurate finding and that the bus driver was actually acquitted in the criminal case, which has not been brought on record.
Secondly, it is pointed that the summary finding on the basis of the charge sheet would result in a mis-carriage of justice when the actual manner in which the accident had occurred was not the subject matter of adjudication or discussion and hence would seek to question the correctness of the finding of the Tribunal. It is contended that the claimants uniformly have exaggerated the injuries said to have been suffered by them and later claimed compensation without any basis and in this regard would point out that insofar as the respondent-claimant in the first of these appeals is concerned, he had suffered very minor injuries and was yet awarded a large sum of compensation. Insofar as the claimants - respondent in second and third of these appeals are concerned, it is pointed that though the Medical Practitioner had assessed the disability at a particular percentage, the Tribunal had failed to apply the settled principles in adopting the said percentage in relation to the whole body disability, resulting in a higher amount of compensation being awarded, and therefore, submits that the award would have to be set aside.
On the face of it, it is evident that the claim laid by each of these respondents was on the basis of composite negligence and that it was immaterial to the claimants as to which of these vehicles was driven in a rash and negligent manner. For in any case of composite negligence the victims are entitled to claim compensation from either one or both the vehicles involved in an accident, jointly and severally. Therefore, even if there was negligence that could be attributed to the vehicle in which the respondents in the first two appeals were travelling or the manner in which the respondent in the third of these appeals was injured, it would be open to them to recover compensation from the present appellant. Therefore, there is no infirmity in the Tribunal having awarded compensation to the claimants even though it may be possible that there was no negligence on the part of the driver of the bus as is evident from subsequent circumstances.
Insofar as the other primary ground as to the basis for awarding compensation being erroneous and that there were simple injuries, which did not lead to any serious disability and even the disability having been taken at a higher percentage, and therefore, requesting this Court to interfere would also not be significant. In that, the amounts involved are not exorbitant and even if there was an error committed in the percentage of disability being taken on the higher side since there can never be a mathematical precision insofar as arriving at the percentage of disability, variance of percentage of disability to a degree is not very significant, and therefore, even if the Tribunal has adopted a higher percentage of disability insofar as the claimants are concerned, it does not result in any serious prejudice to the appellant for the further reason that insofar as the entitlement of the appellant to recover the compensation amount to the extent of contribution is not taken away. Entitlement to contribution insofar as the negligence that could be attributed to the other vehicle involved in the accident is present and is capable of being recovered. In that, as laid down by the Full Bench of this Court in the case of Karnataka State Road Transport Corporation Vs. Arun alias Aravind, , the appellant is not precluded from claiming that there was contributory negligence or even that the entire negligence could be attributed to the other vehicle involved in the accident and to have the same adjudicated before the very Tribunal in the very proceedings though it would be necessary for the appellant to first satisfy the award in favour of the claimants -respondents. The appellant is not precluded from having the quantum of contribution to be made by the other vehicle determined, if it could be established that negligence could be attributed to the said vehicle and claiming recovery thereof.
Given the circumstance that though the driver of the vehicle belonging to the appellant was chargesheeted, the subsequent event that he has been acquitted would lead to a presumption that there may not be a great degree of negligence that could be attributed to the said driver in which event it would have to be necessarily adjudicated by the Tribunal as to what is the negligence and what is the contribution that would emanate from the appellant and what is the contribution that could be attributed to the other vehicle that was involved in the accident, which question is left open. It is for the appellant to approach the Tribunal and if the same is adjudicated in due course with liberty to the appellant to do so insofar as the claimants -respondents are concerned, they are entitled to compensation with interest as awarded by the Tribunal upto date of payment and accordingly the amount in deposit be remitted to the Tribunal for the benefit of the claimants - respondents while leaving the question as to the degree of negligence that could be attributed either one or the other vehicle, to be heard in due course. The appeals are allowed in part.
In view of disposal of main appeals, Miscellaneous Civil Applications 101456/2010, 101459/2010 and 101461/2010 do not survive for consideration.