^'.^ ^ HIGH COURT OF CHHATT180ARH KT BIU^PUR M.A.(C)No. 332 of 2007 E; Appellant Respondents Gendram Sahu VERSUS Surendra Kumar Jaiswal & othens AWARD Forconsfeleratlon $" -07-2011 ' Sd/- juag® S^ -07-^)11 Hon'ble Shri Raieev Gupta ^ Sd/- Chief Justice Postfor:7 -07-2011 Sd/- N.K. Agarwal Judge '\ '^,^. ^. "^sy% j •^y -K^^" ^ ^ HIGH COURT 01s CHHATTISQARH AT BIIASPUR M.A.fQNo. 332 of2007 Appellant Claimant Resoondents Non-aoilljcants Gendram Sahu Son of Shri Shiv Prasad Sahu, aged about 28 years, R^ident of Hathnipara, Police Station Bhatapara, Tahsil Bhatapara, Distrjct Raipur (CG) Versus 1. Surendra Kumar Jaiswal, son of ^iri Parasnath Jaiswal, r^ldent of ^4o. Line Bhata, Jail Road Katghora, Poltoe Station and TahsU Katghora, Distrtot Korba (CG). (Driver of offending vehicle bearing No. CG.10-A/9117) 2. Avtar Singh son of Shri Nachhattar Singh, Resident of Telipara Bllaspur, Tahsil and District Bilaspur (CG). (Owner of offending vehtcle beartng No. CG.10-A/9117) 3. The Oriental Insuranee Company Umited, Through : The Divislonal Manager, The Oriental Insurance Company Umited, Kachahari Chowk, Jail Road Madina Manztl Raipur, Tahisl and District Ralpur (CG) (Insurer of offendir^ vehtete bearlng No. CG-10-A/9117) (APPEAL UNDER SECTION 173 OF TME MOTOR VEHICLES ACT) (DB: Hon'bte Mr. Raieev Outita. CJ & Hon'ble Mr. N.K. Aaarv^l.J.l : Shri Prafcash Mishra, Advocsrte for appellant. , Shri Sudhir Agrawal & Shri P. Dutta. Advexiates for respondent No. 3. Mft(ARD (Deliveredoin "7 ^7/2011) Per: N.K. Aaarwal. J. 1. This is claimarrts' appeal seeking ertianeement in the award dated \ 05.12.2006, passed by the AddtUonal Mptor Accident Clatms Tribunal, ^ J Bhatapara, District Raipur (for short 'the Tribunal') in claim case No. 12/06. On 22.12.2005, the appellant/claimant was sitting as a piNion rider on the Boxer motorcycle bearing registration No. CG-04-C-2820, being driven by Jhumuk Lal Dewangan and when they reached near Pandey Medical Store, Simga, accident had occurred due to head-on-colluston between motorcycle and Truck bearing registration No. CG-10-A- 9117, resulting in death of motorcycte driver Jhumuklat Dewangan. As against Rs. 7,00,000/- claimed by the ctaimant by filing applteatton under Section 166 of the MV Act for the injuriee sustalned by him in the said accldent against the driver/owner and Insurer of the offending Truck, the Tribunal awarded a total sum of Rs. 20,000/- 'against the respondents hokling them responsibte for its payment |oint!y and severally. The Tribunal, on a close scrutiny of the evidwce led, held : respondent No. 1 i.e. driver of the TrKck and Jhumuklal i.e. elriver of motorcycte, both jointly responsible to the cause of accident and apportioned inter-se negligence between them in ttie ratto of 40:W%; assessed the amount of compensation payable to the appeltant at Rs. 50,000/-; deducted 60% of it on account of negligenGe of deceased motorcycle driver Jhumuklal, and thus awarded Rs. 20,000/- as compensation in favour of the appellant/ctaimant as again^ the respondents along with interest @ 9 percent from tie date of application till its actual payment. Shri Prakash MisHrg, leamed eounsel for the appellant would submtt the Tribunal has err6d in awarding low amount of compensation jgnoring the fact of permanent disabiljty suffered tey the appeltant and -^. ^ '"^.^ ^ , ^ 13. In view of above, so far as the amount @f compensation^ on aocount of in]ury sustained by the appeltant/Glaimant, assessed by ttte Tribunal at Rs. 50.000/- te concemed, we do not flnd any iRfirmttyti the facts and circumstances of the case. However, ttie eore queslion inwlved in the instant case is ttiat whether the amount of eompeneatien awarded in favour of pinion rider of motorcycle can be redueed on th®gffound that the above accident had occurred due to composite viegj||ei<w% of motorGycte and Truck driver botlr. ^ 14; The law is well s^tled, in an accident tnvolving two pr mope vehtetes, where a third party (other than the drivers and/or ©wnersof the vehicles involved) claims damages for loss or {n^irios, is aaid that the person was Injured on account of th®Gompostte n^gl^ence of those wrongdoers In such a case, each wrongdoer is Joiirtly and severally liabte to the tnjured for pa^nenk of ttie cntire damages ami the injured person has the chotee of proceedin^ against att or any of I them. 15. The Supreme Court In case of T.0. AnthQfiy v. Kafvanvan & offwfs, repoited m (200^ 3 SCC 748, has held hi para 6 li 7 as under: ; 6. "Composit®negligence" refere to the negtigence on the partoftwo or morepersoiis. Where a person is injured as a resutt of negligence on the j»rt^ two or more Mn'ongKtow®,it is said that the person was iRjured on account of the compostte f»e9UgeR<»of thosa wongdtoere. In such a cas®. each wrongdoer is jcMntfy and severally liable to tha in^inwl for payment of the entfre damages and ttie In^ired persoo hs®ttie ehoice of proeeeding s^ainst all @r any of tttero. In such a case, ttte injured need not establish Itie extent of responsibili^ of eaeh wrongdoer separately, nor is ft necessaiy for the court to d^eiwime the exteirt of Itabilityerf each wror^doer separsrtefy. On the ottier hand where a person saiffere myary, par^y due to the n^ligence on ttie part of anottier ()eraon or persons, aiwl partly as a resolt ofNs own negligerKBe, •ttiwi tiit n^Ugeiice on ttie part of ftie jnjuredwhich (^RtribirtBd tothe accictont is refewed (o as his confributory n^Mgence. Where the hjured is gultfy of some ~1 ^S&S^^.^:... ^ also fallen in error in deducting 60% amount of eompensation awarded on account of contrtbutory negligence @f deceased motorcycte driver Jhumuklal. 6. On the other hand, Shri Sudhir Agrawat, learnedcounselappearing for respondent No. 3/lnsurance Corapany svpported the award impugned and would submit that in the faots and eircumstances ofthe case, amoynt awarded by the Tribunal is Just and reasenattte and needs no interference. 7. We have hesN-d the learned counsel appeartftg fbr the pEirtles and perused the award Impugned. 8. Though, the appellanVdabnant has pteaded that he suffered permanent disability in the said accident, but fetted to substantlate Vhe same by examintng the Doc^or who treated him. 9. The Supreme Court in case cxf AP. SRTC v. P. Thli^fal fMdy, reported in (2005) 12 SCC-189, observad in para 6 as under: "SAfter hearing leamed coung®!for the respondcnt-claimant who made an attempt to support ttie order <rf tbe High Court. We find ttiat there was no justifiartion for ttie High Court to rely on the disability certificgte issued t^ Dr. Sudhakar Red<^ and enhance tiie compensation by fr«atingflie injury as perwanent disability to be 45 per cent. Tbe High Court committed gipss - enor in overiooking the fact that Dr. Sudhafesu- jReddy's ^ medical certificate was rejeeted by ttie Tribunal ter non- examination of that doctor. The Trtbunal has d^iermtned tbe physical disabilify at 15 per cent on the basis ofthe deposaion of Dr. K.M. Mttpa and awarded a just and ferfr compensation. The High Court erred in disturbing the same and enhancine the compensation. Consequently, we allow thte appeal, set aside the impugned opder and E? tor$ the awarct oftre Clatois Tribunal. The respondent-claimant is allewed to withdraw the amount of compensation awarded by the Tribunal, tf it has not atready been withdrawh." 10. The Supreme ©purtin a recent cMctum in ©aseof Ra|B^h Kymar alias Raju v. Yiidhvir^Singh and another, reportsd In <2008) 7 SGC 305, retterated the same view with the foltowing observatlons in para 11: ^ ^ .--y" // / (^ ^^ \^^ 4 "II.The certificate in question in ttiis case vireis oblafried after two years. It is not known as to whether the Ch/il Surgeon of the hospitai treated the appellant. On what basis, such a certfficate was issued two years after the acciderrt took place is not known. Tbe author of the said certificate had not been eiaimined. Untess the author of Uie certiflcate examhied himseff, it was not admissibte in evidence. Wl^her the disability at 60% was cateulated on the basis ofthe provisjwis of the Workmen's Compensation Act or otiierwise is twt known. It is also not known as to whe'ther he was competent to issue such a certificate. It even does not appear Ihat ^te contentions raised before us had eittier been raised before the Tribunal or the High Court. The Tribunal as also tlie High Court, therefore, proceeded on the materiats brought on record by the parties. In absence of any contention hawng been raised in regard to the applicability of the Wortanen's Compensation Act which, in our opirwon. ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the ftrst time." 11. This Court in case of Pradeep Kumsr SsMfii vs. Sawpa Sahu & anoffiervide order dated 31st March, 2009, placing its retiance upon the dicta of Supreme Court in the cases referred above held tn para 8 as under: "8. In view of the above quoted dida of th®Apex Court in the cases of A.P. SRTC v. P. Thlnspsd Redcfy (supra) ancS Rajesh Kumar altas Rsyu v. Yuslhvif' Slngh and anetfiw (supm), the certificate produced before the Trtbunal in the absence of examination of the Doctor jssuung the cwtificate is neither admissibte in evidence nor can b©taken into consideration as substantive evidence for assessment ofthe compensation in tiie case." 12. Admittedly, the claimant suffered multipte injuries in the said acoident, moreover, the claimant in his own wisdom dld not examine Doctor to prove the injury sustained In the accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are neither admissibte in *, evidence norc^in be taken into conslderation as substantiv®evidenee 'v for enhancement of compensation in the case. \\.1 negligence, his claim for damages is n^ defeated merety by reason of the negligence on his part bul the damages recoverable by him in respect oftti®injuries stswidTeduGed in proportion to hfe contributory negUgence. 7. Therefore, when tvro vehlctes ar®involved in an aixKlent, and on& of the driveis daims compeRsation ftom the ottier driver alteging negtigence, and "ttw crthw dnver denies negligence or claims that the injured cteimant him^eff wgs negligent, then it becomes necessary to consjder whdher ttie injured daimant wis negligent and if so, ^ettier he was sotely or partly responsibtefor theaccident and thje esdent of his responsibilily. ttiat is, his contributory negligeruse. Therefore where the injured is himself partty liabte, the principte of "composite negligence" witl not apply nor can there be an automatic inference that ttie negl^enc®was 50:50 as has been assumed in tiiis case. The Tribumit ought, to have ©xaminedthe exterrt of eontribytofy ne^igence of the appellant and thereby avoided confuslon between composite n^ligence and confributory negligence. The High Court has failed to correct the said error." 16. Now reverting to the facts of the case, theappellanVclaimant is third party, inasmuch as, the motorcycle was being driven toy decea®ed JhumuWal Dewangan and Truck wa®being driven by respondent No. 1 at the time of accfelent. Once it is hekt that the acddent had occurred due to composite negllgence of motorcycte dri^er and Truck driver then appellant/claimant cannot be held responslble to the cause of accident and he Is wtthin his right to dalm Gompensatton against any of them. The Tribunal mis-understood the distincti<?n between composite and contributory negligence, and therefore, has falten in error in deducting 60% amoUnt ofcomper^ation on account of alleged negligence ofthemotorcydedriver. 17. Therefore, jn the consklered opintpn @f this court, the appellanVcJaimant is wtttl^t for entire amount of cpmpensatton of Rs. 50,000/- as assessed by the Tribunal wfthout deducting from it any amount towards contributory negligence of deceased Jhumuklal •\. Dewangan i.e. driver of motorcycte. ^ 18. Learned counsel for the partes submitted that with a view to avoict any possible dispute between the parties about the period for whtch the claimants are entltled to receive inter^t on the enhanoed anwunt of compensation, the amount of interest on the enhanced amount of compensation may be quantifled in this appeal itself. 19. Considering all the relevant fa^ors, we qtianttfy the amount of interest on the enhanced amount of Rs. 30;000/- at Rs. 200W- 20. For the foregoing reasons, the appeal fited t>y the appellant/otaimant for enhancement of the compensation (s allowed hi part. The compensation of Rs. 20,000/- awarded by the Tribunal js enhanced to Rs. 50,000/- with further quantifted amount of interest of Rs. 200©/-on the enhanced amount of Rs. 30,000/-. Re^ of the oondMions mentioned in the award shall remain intact. The award stends modified to the above extent. 21. The respondent No. 3/0riental Insurance Company Limited, is granted three months' time to deposit enhanced amount of compensation before the concemed claims Tribunal. No orcter as to costs. Sd/- Chief Justice Sd/- N.K. Agarwal Judge Sahu