Ramchandra Sindji Chauhan and Others vs Arvind Kumar S. Mehta and Another

R.M. Chhaya, J.—The present appeal arises out of the common judgment and award dated 22.01.1997 passed by the Motor Accident

Claims Tribunal (Main), Surendra nagar (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 Arvind kumar 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 u/s 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 Others Vs.

S. Lakshmi and Another, 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. v. S. Lakshmi and Anr. (supra) in Paragraph Nos. 8 to 14 as under:

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.

The relevant statutory provisions, being Sections 149(2), 170 and 173 may be noticed by us, which are as under:

(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.

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, 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 Company 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 u/s 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 u/s

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;

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.

However, another Bench of this Court in Chinnama George and Others Vs. N.K. Raju and Another, opined:

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.

Sections 146, 147, 149 and 173 are in the scheme of the Act and when together mean read: (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.

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.

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.

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.

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 was 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 is 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 The Municipal Corporation of Greater

Bombay Vs. Shri Laxman Iyer and Another, wherein word ?contributory negligence? has been defined and it has been held as under:

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 Charles worth 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).

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) Mand W 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 Company (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 the cause was or what the cause of the damage was. 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 Yadava

Kumar Vs. The Divisional Manager, National Insurance Co. Ltd. and Another, wherein the Apex Court has, while determining the quantum of

compensation has observed thus:

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''s far as possible in the same position, as if the injury has not taken place, byway of grant of pecuniary relief. Thus, in the

matter of computation of compensation, the approach will be slightly broader 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 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.