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Judgment
Being aggrieved by the judgment and award dated 12.05.2016 passed by the Motor Accident Claims Tribunal (Aux), Court No.24, Ahmedabad in MACP
No.577/98, the present appeal is filed by the claimant under section 173 of the Motor Vehicles Act, 1988.
The record indicates that the claimant sustained injuries in an accident which took place on 21.10.1997. The said accident took place in Ambawadi area of Ahmedabad between rickshaw bearing RTO registration No. GRY-908 and Maruti Car bearing RTO registration No.GJ-13-9723 as can be culled out from the record of the appeal as well as the Tribunal. Because of the accident, the rickshaw turned turtle and the appellant claimant received injuries on the left leg ankle. The claimant filed an application under section 166 of the Act and claimed compensation of Rs.1,30,000/-.
At the outset it deserves to be noted that the Maruti card was insured by respondent no.5 insurance company whereas the rickshaw was formerly insured by original respondent no.4. However, respondent no.4 was deleted from the array of the claim petition as the policy was not subsisting. The claimant examined himself at Exhibit 70 and also relied upon document evidence such as FIR at Exhibit 71, panchnama of the scene of accident at Exhibit 72, injury certificate at Exhibit 73 and medical bills at Exhibit 74 and 75 as well as certificate of permanent disability of the claimant at Exhibit 77. It further appears that respondent no.5 also brought on record the policy of the Maruti Car at Exhibit 80 and 81. The Tribunal by the impugned award, while partly allowing the claim petition awarded an amount of Rs. 36,510/- with interest at the rate of 8% p.a. from the date of the claim petition till its realisation. While partly allowing the application, the Tribunal has mentioned that Rs.10,953/- is to be recovered jointly and severally from respondents no.1 and 2 and Rs.25,557/- to be recovered jointly and severally from respondents no.3 and 5. Such operative order has bee passed on the basis of the fact that composite negligence of both the vehicles, i.e., rickshaw and maruti car was determined in the ratio of 30%:70% and being aggrieved by the same, the present appeal is filed.
Mr. Vashi, learned advocate appearing for the appellant at the outset submitted that the appellant does not challenge the quantum of the award. Mr. Vashi further relying upon the judgment of the Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd . reported in (2015) 9 SCC 273 contended that the Tribunal has committed an error in bifurcating the amount awarded as per the negligence determined by it. It was contended by Mr. Vashi that the appellant- claimant should have liberty to recover the amount from any of the joint tortfeaser and such bifurcation is dehors the provisions of the Act and is against the ratio laid down by the Apex Court. Mr. Vashi also further submitted that
considering the date of the accident being 21.10.1997, the Tribunal has wrongly awarded only 8% interest. Mr. Vashi further contended that considering the Bank rate in the year 1997, at least it should have been 9%.
Mr. Rituraj Meena, learned advocate appearing for respondent no.5 with learned advocate Ms. Niyati Juthani has supported the impugned award and has submitted that both the contentions raised by the learned counsel appearing for the appellant are meritless and the Tribunal has committed no error in passing the impugned award.
Mr. Sood as well as Ms. Brahmbhatt, learned counsels appearing for respective respondents have also supported the impugned award.
No other or further submissions are made by the learned counsel appearing for the respective parties.
Perused the original record and proceedings and have also gone through the impugned award. Upon re-appreciation of the evidence on record and considering the fact that the accident took place on 21.10.1997 and considering the FIR at Exhibit 71, the said fact stands proved and the same is not even controverted by any of the parties to appeal.
Considering the rate as prevailing in 1997, the contention raised by Mr. Vashi that interest at
least should be 9% deserves to be accepted in the facts and circumstances of the case.
Upon examining the another contention raised by the appellant that as far as bifurcation of recovery as provided in the operative part of the impugned order is concerned, it would be appropriate to refer to the judgment of the Apex Court in the case of Khenyei (supra) wherein, in similar case of composite negligence, while examining the aspect of recovery of compensation from joint tortfeaser, has after considering the judgment of the Apex Court in the case of National Insurance Company Ltd. vs. Challa Upendra Rao reported in (2004) 8 SCC 517 and judgment in the case of Oriental Insurance Co. Ltd. vs. Nanjappan reported in (2004) 13 SCC 224 has observed thus -
"22. What emerges from the aforesaid discussion is as follows :
22.1 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.
22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3 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 determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
22.4 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."
In the case on hand also, while determining the inter se liability of composite negligence and the Tribunal having come to the conclusion that the driver of the rickshaw was negligent to the tune of 30% and the driver of Maruti car was negligent to the tune of 70%, has apportioned compensation between both the tortfeaser, which is not permissible as held by the Apex Court in the case of Khenyei (supra). As held by the Apex Court, the option has to be given to the claimant to recover the amount awarded from the easiest target and in turn, the said joint tortfeaser can recover from the other tortfeaser. The ratio laid down by the Apex Court would wholly apply to the present case.
In light of the aforesaid, without altering or modifying the quantum of amount of Rs.36,510/- awarded by the Tribunal, the appeal is partly allowed by providing that all the joint tortfeasers are also held to be jointly and severally liable. However, the composite negligence would remain the same and it would be open for the other joint tortfeaser to recover the amount, if in case the claimant prefers to recover it from one of the tortfeaser. As far as interest is concerned, as observed hereinabove, in facts of this case, in opinion of this Court, the interest be paid at the rate of 9% instead of 8%.
The award stands modified only to the aforesaid extent. No costs. R & P be transmitted to the Tribunal forthwith.