Manoj Singh v. Vikram Singh

For Appellants : Ms. Seema Verma, Advocate on behalf of Mr. Jitendra Shrivastava, Advocate For Respondent No. 2 : Mr. Dev Ashish Biswas, Advocate For Respondent No. 3 : Mr. Utsav Mahishwar, Advocate Hon'ble Shri Justice Parth Prateem Sahu C.A.V. Judgment

Appellant-claimant has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated

11.12.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Ambikapur, District Surguja, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 162/2017, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 2,38,775/- as compensation in motor accidental injury case and fastened liability upon Respondents No. 1,2 & 4, jointly and severally.

Facts of the case relevant for disposal of this appeal are that on 09.01.2017, appellant/applicant was travelling along with his acquaintance, Vinay Singh alias Raja Singh, in his Pajero vehicle bearing registration No. CG 15 CW 9099, who was driving the vehicle towards his farmhouse at Sarganwa. When the vehicle reached near Panchanan Hotel on the Ambikapur– Pratappur Road, a truck bearing registration No. CG 04 ZC 0369 (hereinafter referred to as “offending truck”), driven by respondent No. 1 at a high speed and in a rash and negligent manner, came onto the wrong side of the road and collided head-on with the Pajero vehicle. Appellant, who was seated on the rear seat, sustained grievous injuries on his head and other parts of the body. He was initially admitted to Jeevan Jyoti Hospital, Ambikapur, and after some time he took treatment at Banaras.

Appellant-claimant filed an application under Section 166 of the Act of 1988 seeking ₹ 6,50,000/- as compensation pleading therein that due to accident he remained hospitalized for about five months and continues to undergo treatment, due to which he is unable to work.

Respondent No. 1, driver of the offending truck, filed his written statement/ reply denying the adverse pleadings made in the claim application.

Respondent No. 2, registered owner of truck No. CG 04 ZC 0369 (offending truck), filed his reply to the claim application and has denied the claim and pleaded that the said truck was not involved in the accident. If the applicant sustained injuries while travelling in the Pajero vehicle, the owner and insurer of that vehicle are liable to pay compensation. It is further pleaded that the police case does not implicate respondent No. 2.

Alternatively, it is further pleaded that respondent No. 2 had sold the truck to respondent No. 4, Akbar Ansari, under a sale agreement dated 05.08.2005, delivered possession of the vehicle, and handed over the signed transfer documents. It is also pleaded that respondent No. 2 had neither possession nor control over the truck on the date of the accident and had never employed respondent No. 1 as its driver.

Respondent No. 3, insurer of the Pajero vehicle, in its reply also denied its liability. It is pleaded that the owner and driver of the insured vehicle violated the terms and conditions of the insurance policy as the driver, Vinay Singh, did not possess a valid and effective driving licence. It is further stated that the driver of the truck also did not possess a valid driving licence to drive a transport vehicle. It is further contended that the applicant did not suffer any permanent or temporary disability, that the injuries are not covered under the claim as alleged. The owner of vehicle failed to intimate the insurance company about the accident, and that the insured vehicle was not involved in the accident as alleged. On these grounds, respondent No. 3 prayed for dismissal of the claim against it.

Respondent No. 4 also filed reply to the claim application, denied the pleadings made in the claim petition. He further denied ownership or possession of offending truck No. CG 04 ZC 0369 and contended that although negotiations had taken place with respondent No. 2 regarding its purchase, the vehicle and its documents were never delivered to him.

Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties has formulated as many as six issues for consideration and recorded a finding that appellant Manoj Singh suffered grievous injuries in a motor vehicle accident caused by offending truck due to rash and negligent driving by non-applicant No. 1. It is held that insurance policy of the offending truck was not produced by any of the party and the insurer of the offending truck was also not impleaded as party respondent and awarded compensation of ₹ 2,38,775 and fastened liability upon Respondent No. 1, 2, 4 jointly and severally while rejecting claim of insurance company of the Pajero vehicle.

Learned counsel for appellant-claimant would submit that learned Claims Tribunal erred in awarding meagre sum of compensation of ₹ 2,38,775/-. He submits that learned Claims Tribunal erred in assessing the income of deceased as ₹ 4500/- per month only, which is on lower side, overlooking the specific pleading made in the application and stated by the appellant in his evidence. Claims Tribunal in absence of any admissible piece of evidence with regard to income ought to have considered the wages prevailing during that period. It is next contended that the Claims Tribunal erred in not awarding appropriate amount of compensation towards the loss of income during treatment period and prays that the amount of compensation be suitably enhanced.

Learned counsel for Respondents No. 2 as also learned counsel for Respondent No. 3 would support the impugned award and further submit that the amount of compensation awarded by learned Claims Tribunal is just and proper in the facts and circumstances of the case which does not call for any interference of this Court.

I have heard learned counsel for the respective parties and also perused the record.

Sofar as, the first ground raised by learned counsel for the appellant with regard to income of the appellant is concerned, though there is pleading in the application that the appellant was doing the work of Contractor and was earning ₹ 20,000/- per month, however, appellant-claimant failed to prove the said fact by producing any admissible piece of evidence before the Claims Tribunal. Learned Claims Tribunal in absence of any admissible piece of evidence has assessed the income as ₹ 4,500/- per month overlooking the date of accident ie., 09.01.2017. Even if the appellant-claimant failed to prove the nature of occupation and income of appellant, it is for the Tribunal to assess the income notionally taking into consideration the relevant factors. If the appellant is to be treated as labourer on the date of accident and that too unskilled labourer, learned Claims Tribunal ought to have assessed the income of deceased on notional basis taking note of the wage structure prevailing in the area and other factors like date of accident, age of deceased, price index etc. and could have also taken help of the wages fixed by the competent authority-cum-Labour Commissioner, Raipur in this regard. Tribunal erred in not considering the minimum wages fixed by the competent authority in the facts of the case as per the notification issued by the competent authority under the Labour Department, State of Chhattisgarh. In the year 2017, the wages fixed for unskilled labourer working in C-Grade city is ₹ 9,230/- per month. In the above facts of the case, I find it appropriate to assess the income of deceased as ₹ 9,230/- per month treating him to be an unskilled labourer. It is ordered accordingly.

No other ground has been raised by learned counsel for appellant. The amount of compensation of ₹ 1,26,275 towards medical expenses, ₹ 30,000/- towards mental pain and suffering, ₹ 15,000/- towards special diet, ₹ 15,000/- towards conveyance expenses and ₹ 15,000/- towards attendant appears to be correct and they are affirmed. Compensation towards loss of earning for five-months is now calculated as ₹ 46,150/- (₹ 9230x5).

For the foregoing discussion, the amount of compensation to be awarded to appellant-claimant requires recomputation, which is as under. Particulars Compensation Loss of income of five months Medical Expenses (maintained) Mental Pain and Suffering (maintained) Special Diet (maintained) Conveyance (maintained) Attendant cost (increased from 15,000/- to 25,000/-) Total ₹ 46,150/- ₹ 1,26,275/- ₹ 30,000/- ₹ 15,000/- ₹ 30,000/- ₹ 25,000/- ₹ 2,72,425/-

Now the appellant/claimant shall be entitled for total sum of compensation of ₹ 2,72,425/- instead of ₹ 2,38,775/- as awarded by learned Claims Tribunal. The amount of compensation shall carry simple interest @ 8% p.a. from the date of filing of claim application till its realization. Any amount paid to the appellant-claimant pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Other conditions imposed by the Claims Tribunal in the impugned award shall remain intact.

So far as liability to pay amount of compensation is concerned, status of appellant to be occupant of Pajero vehicle at the time of accident is not disputed. Accident between the truck and the Pajero vehicle, registration number of which is mentioned in preceding paragraph, is also not in dispute. It is also not in dispute that Pajero vehicle was being driven by Vinay Singh who is also owner of the said vehicle. Respondent No. 3 being insurer of Pajero vehicle is also not disputed.

There is accident between a truck bearing number CG04ZC0369 and one Pajero four-wheeler bearing number CG15CW9099. Tribunal in claim case, subject matter of this appeal, has not formulated any issue with regard to whether the Pajero vehicle was being driven in breach of policy conditions at the time of accident. On the date of hearing of this appeal, one another appeal bearing MAC No. 747/2021, arising out of same accident, was also heard and decided. Claim case, subject matter of MAC No. 747/2021 was claim case No. 70/2017. Three claim cases were filed separately bearing claim case No. 70/2017, claim case NO. 163/2017 and claim case NO. 162/2017 which are arising out same accident and claimants therein were travelling in Pajero vehicle, against which three miscellaneous appeals have been filed bearing MAC No. 747/2021, MAC No. 1037/2020 and this instant appeal. Perusal of award in all the appeals would show that it was passed by the same Presiding Officer on the same date on 11.12.2019. In claim case No. 70/2017, subject matter of MAC No. 747/2021 decided on 11.12.2019, Tribunal has formulated specific issue No. 2 “whether the driver/ insured of Pajero vehicle had driven the vehicle in breach of policy conditions”, this issue was decided by the Tribunal ‘as not proved’.

The Motor Vehicles Act is a beneficial piece of legislation. In one of the claim case arising out of same accident when the Tribunal has formulated specific issue with regard to breach of policy conditions of the policy issued for the Pajero vehicle and that has been decided, in the opinion of this Court, instead of remitting the appeal I am of the considered view that the said finding recorded by the Claims Tribunal in claim case No. 70/2017 can be taken into consideration for just decision of this appeal with regard to consideration of the finding recorded by the Claims Tribunal on issue No. 5 of exonerating non-applicant No. 3 therein/ Respondent No. 3-Insurance company of Pajero vehicle, keeping in mind the finding of the Tribunal in claim case No. 70/2017 that there was no breach of policy conditions of the insurance policy issued for the Pajero vehicle.

Now I will consider with regard to the finding recorded by the Claims Tribunal of exonerating the insurance company/ Respondent No. 3/ non-applicant No. 3 from its liability to pay the amount of compensation.

In case where the accident is in between two vehicles, occupant of either of vehicles can claim compensation against owner, driver and insurer of either of two vehicles and for which claimants or legal representative of deceased- occupant are not required to prove negligence. In the aforementioned facts of the case, appellant (occupant of Pajero vehicle) can claim compensation against owner, driver and the insurer of either of the two vehicles and he has also claimed against both the vehicles in relief clause.

As appellant was not driving the vehicle which met with accident with offending truck, principle of contributory negligence would not be attracted, it would be composite negligence. Hon’ble Supreme Court in the case of Hon’ble Supreme Court in the case of T. O. Anthony v. Karvarnan and others reported in (2008) 3 SCC 748, has discussed the very issue of accident involving two vehicles and the liability to pay compensation and observed thus: “6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.”

In above facts of the case, claimant would be entitled to claim compensation against any one or both the vehicles. The claimant has sought compensation against driver, owner and insurer of both the vehicles. The learned Claims Tribunal erred in dismissing the claim against non-applicant No.3 -insurance company. Accordingly, said finding in para 26 (1) to the extent of exonerating respondent No.3 is set aside. It is held that Respondent No. 3/ non-applicant No. 3 is liable for payment of compensation jointly and severally with other non-applicants.