Sham Lal v. Brij Mohan & Ors.

Sarwan Kumar son of Shri Punna Ram resident of village and P.O. Kharindwa, P.S. Shahabad (M), Tehsil Thanesar, District Kurukshetra ......Appellant Versus Brij Mohan son of Sh. Ratti Ram and others Present: Mr. Jagdish Manchanda, Advocate for the appellant.` ......Respondents None for respondent Nos.1 and 2. Mr. R.C. Gupta, Advocate for respondent No.3. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. All these three appeals arise out of the same accident when FAO No.412 of 1994 -2- the claimants who were workmen and who were travelling in the trolley attached to a tractor sustained injuries in a motor accident that arose out of a collision with the respondent's tempo that was insured with the National Insurance Company. The Tribunal found that the accident had taken place at the time when the tractor trolley was overtaking another vehicle and the accident had taken place in the middle of the road and therefore, found that both the vehicles were at fault. While determining compensation for each one of the claimants, the Tribunal made partial abatement of 50% of the claim for the negligence attributed to the driver of the vehicle in which they were travelling.

2. The claimants are in appeal seeking for enhancement on the ground that the amount had not been properly assessed and that in any event the finding of contributory negligence was erroneous.

3. As regards the claim, which is the subject matter of appeal in FAO No.412 of 1994, the claimant had suffered a loss of vision in eye due to the injuries suffered which was assessed at 40% by the doctor, who was examined in the case. The Tribunal found that he was entitled to Rs.50,000/- that included Rs.30,000/- for medical treatment, Rs.1,000/- for loss of earning and Rs.15,000/- for pain and suffering. Learned counsel would submit that the Tribunal was in error in not determining future loss of earning for loss of vision in one eye as also resulting in loss of earning capacity. I would accede to such a contention and take the compensation payable in the manner provided under Schedule II of taking 40% disability as also resulting in 40% loss of earning capacity as spelt out in Schedule II under the Workmen's Compensation Act. The Tribunal had made reference to FAO No.412 of 1994 -3- DC rates for an unskilled worker and took the monthly income to be Rs.950/-. I will take, therefore, the loss of earning capacity to be Rs.4560/- yearly. He was aged 26 years and I would adopt a multiplier of 18 as provided under Schedule II and I would take the annual loss of earning to Rs.82,080/-. The Tribunal has already assessed Rs.30,000/- as permanent disability, which must be taken as including a component of loss of earning capacity. Since I have separately assessed the loss of earning capacity for future, I will reduce the assessment towards the permanent disability which, in my view, would mean a loss of amenities of life to Rs.20,000/-. The heads of compensation awarded for medical treatment, actual earning for one month and also for pain and suffering as determined by the Tribunal are retained. This would mean an additional amount of Rs.82,080/- from over and above the amount of what is determined by the Tribunal.

4. As regards the claim which is the subject matter of appeal in FAO No.809 of 1994, the claimant was 30 years of age and by virtue of accident he had suffered a fracture of his right leg that had been assessed to have caused 5% permanent disability. The Tribunal had awarded Rs.27,000/- that comprised of Rs.12,000/- for permanent disability, Rs.2,000/- for medical treatment, Rs.3,000/- for annual loss suffered on account of loss of earning and Rs.10,000/- towards pain and suffering. Learned counsel would contend that even for compensation on no fault liability itself for permanent disability will be Rs.12,500/- at the relevant time and the determination of Rs.12,000/- towards permanent disability is not proper. This argument, in my view, is not correct for an assessment of FAO No.412 of 1994 -4- compensation for grievous injury with the permanent disability on no fault basis as provided under Section 140 of the Motor Vehicles Act factors all the components of claim including medical expenses, pain and suffering and loss of earning and therefore, for every permanent disability, it cannot be independently taken as Rs.12,500/- when other heads of claim have been fully addressed. A determination of Rs.27,000/-, in my view, accords with justice and it calls for no interference.

5. As regards the claim for compensation, which is subject matter of appeal in FAO No.883 of 1994, the claimant had suffered simple injury for which the Tribunal had awarded Rs.3,000/-. This also accords with justice and calls for no interference.

6. If the claimants were themselves not tort feasors and if they were only loadmen in a vehicle which was driven by a person, who was found to be negligent, as far as the claimants were concerned, it was a case of composite negligence and not contributory negligence. There exists a difference, for a claimant who complains of composite negligence is entitled to sue any one of the joint tort feasors and recover the whole of the amount against one of the tort feasors and the insurer. It shall not become necessary for the claimant to implead all the tort feasors. In this case, the driver and the owner of the tractor trolley in which they were travelling have not been impleaded as parties. It cannot result in any failure or abatement of claim at all if the joint tort feasor could be made to contribute in an independent action that could be taken by the insurance company that is made liable to pay. The issue of how the apportionment is to be made and the law defining the distinctions between composite FAO No.412 of 1994 -5- negligence and contributory negligence has been set forth in detail by a judgment of this Court in Oriental Insurance Company Limited Vs. Meena Kumari in FAO No.4246 of 2006 dated 24.08.2010. The claimants cannot, therefore, come by any abatement of claims and they are entitled to enforce the same against the insurer of the four wheeler which was involved in the accident.

7. The awards of the Tribunal are, therefore, modified to provide for a right of recovery of the entire amounts determined in the manner referred to above against the owner and insurer of the four wheeler that was involved in the accident and who was sought as respondent before the Tribunal and in the appeal. As far as FAO No.412 of 1994 is concerned, there shall be an award for Rs.1,32,080/- and the amount in excess over what has been awarded by the Tribunal shall attract interest @6% from the date of the petition till the date of payment.

8. As regards the claim in FAO No.809 and 883 of 1994, the manner of assessment of compensation as made by the Tribunal are retained and the entitlement of the respective claimants shall be Rs.27,000/- and Rs.7,000/- and the amounts in excess of what has been awarded by the Tribunal shall carry interest @6% from the date of petition till the date of payment.

9. All the appeals are allowed to the above extent. December 08, 2010 Pankaj* (K. KANNAN) JUDGE