Mahesh vs A. Sabrik Krishna and Others

N.K. Mody, J.—Being aggrieved by the award dated 5th May, 2008 passed by M.A.C.T., Dewas in Claim Case No. 32/08 whereby the claim petition filed by the appellant was allowed and a sum of Rs. 1,90,239/- was assessed as compensation out of which 40% was deducted on account of contributory negligence and a sum of Rs. 1,14,200/- was awarded, the present appeal has been filed.Short facts of the case are that appellant filed a claim petition alleging that on 12th December, 2006 appellant was going in a tractor attached with the trolley loaded with Soyabean. It was alleged that said tractor trolley met with an accident with a truck bearing registration No. KA04D 7977 which was being driven rashly and negligent by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3, with the result appellant sustained 7 fractures. Appellant was hospitalised where appellant was operated 5 times. It was alleged that since the accident occurred because of rash and negligent driving of offending truck, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No. 3 on various grounds including on the ground that accident occurred because of rash and negligent driving of respondent No. 1 and it was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and assessed the compensation as Rs. 1,90,239/- but deducted 40% of the amount awarded on the ground that appellant himself was negligent as he was sitting on the stock of Soyabean which was being carried by the offending tractor, against which the present appeal has been filed.

Learned Counsel for appellant submits that learned Tribunal assessed the compensation as Rs. 1,90,239/-. It is submitted that deduction of 40% amount on account of contributory negligence is against the record as there is nothing on record on the basis of which it can be said that appellant was negligent. It is submitted that because of rash and negligent driving of respondent No. 1 the accident occurred. Learned Counsel further submits that appellant sustained 7 fractures. His intestines were ruptured. Appellant was operated 4 times and total period for which appellant was hospitalised was 38 days. It is submitted that in number of heads no amount has been awarded and in number of heads the amount awarded is grossly inadequate. It is prayed that appeal be allowed, amount be enhanced and findings regarding contributory negligence be set aside.

Learned Counsel for respondent No. 3 submits that amount awarded is just and proper. It is submitted that no permanent disability has caused to the appellant and appellant is equally liable for the accident.

After taking into consideration all the facts and circumstances of the case and keeping in view the fact that truck driver remained ex-parte before learned Tribunal and also before this Court and no other evidence was adduced to prove that in what circumstances the accident occurred, this Court is of the view that learned Tribunal committed error in apportioning the liability to the extent of 40% between the respondents and driver, owner and Insurance Company of the offending tractor who were not impleaded as party. Apart from this, since the appellant was travelling in the tractor which was loaded with Soyabean, there was no justification on the party of learned Tribunal to hold the driver, owner and Insurance Company of the tractor liable who were not impleaded as part. In the matter of T.O. Anthony Vs. Karvarnan and Others, , Hon. Apex Court held that where a person is injured as a result of negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of entire damages and the injured has choice of proceeding against all or any of them.

In view of aforesaid position of law, the findings regarding apportioning the liability between the respondents and owner, driver and Insurance Company of the tractor cannot be allowed to sustain. So far as injuries are concerned, undisputedly the injuries were grievous in nature. The evidence which has been adduced by the appellant shows the permanent disability was of 58% of the particular limb and not of the whole body. In the opinion of this Court, permanent disability of whole body ought to have been assessed as 20% and income ought to have been taken as Rs. 3,000/- per month. On account of medical expenses also the deduction is without any just reason. In view of this, appellant is entitled for the following amount:

Towards medical expenses

Rs. 2,00,000/-

Towards permanent disability

Rs. 1,25,000/-

Towards transport expenses

Rs. 10,000/-

Towards special diet

Rs. 5,000/-

Towards pain and suffering

Rs. 10,000/-1

Towards loss of income

Rs. 15,000/-

Expenses incurred on attenders

Rs. 5,000/-

Total

Rs. 3,70,000/-

In view of this, appeal is allowed. The findings regarding apportionment of liability between the respondents and driver, owner and Insurance Company of the tractor are set aside. Appellant shall be entitled for a sum of Rs. 3,70,000/- instead of Rs. 1,90,239/- as assessed by the learned Tribunal and Rs. 1,14,200/- was awarded after deduction of 40%. The enhanced amount of Rs. 2,55,800/- shall carry interest @ 8% per annum from the date of application. The amount awarded shall be deposited by the Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in the nearest Nationalized Bank, in the area where the appellant is residing, with the condition that the Bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant which shall be opened by the appellant from where appellant can withdraw the amount as per his needs. However, on an application by the appellant this condition could be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant.

With the aforesaid observation, the appeal stands disposed off.