M. Padmanabha Vs. Union of India and ors. - Court Judgment

Hari Nath Tilhari, J.

1. This appeal arises from the judgment and award dated 19.8.1988, delivered by Mr. Mohammed Asif, District Judge/Member, Motor Accidents Claims Tribunal, Chikmagalur, in Motor Vehicle Claim Case No. 157/86 (M. Padmanabha v. Union of India), assessing Rs. 44,600, as total compensation, but declaring the claimant to be entitled to Rs. 33,450, as the compensation, taking the view that there was contributory negligence of the claimant and that was taken to the extent of 25 per cent and on that basis, the award in favour of the claimant-appellant was for Rs. 33,500 only.

2. The claimant-injured, who is the appellant before this Court, had filed the claim petition with the allegations to the effect that on 16.4.1986, he was riding on Shimoga-N.R. Pura Road, on the pillion of motor cycle No. CNA 65, which was being driven and on which the rider was the respondent No. 4, Shabeer Ahmed. According to the claimant's case, the said motor cycle had been insured with the respondent No. 5, the insurance company. According to the claimant's case, the respondent No. 4, allegedly was at high speed, notwithstanding the requests of the claimant-appellant to slow down and be cautious, near the Horticultural Office on the N.R. Pura-Shimoga Road and the motor cycle collided with jeep No. ABR 6533 which was coming from the opposite direction in the middle of the road. According to the claimant's case, jeep was also being driven at a high speed by respondent No. 3 in the claim petition, namely, respondent No. 3 in the memo of appeal. It belonged to respondent Nos. 1 and 2 in the appeal, that is, Union of India and the Central Ground Water Board Region of India.

The petitioner's case is that as a result of head-on collision of the jeep with the motor cycle, the petitioner was thrown off the motor bike and the jeep ran over the left leg of the claimant resulting in compound fractures of the left tibia and fibula. The claimant was taken to the nearby Primary Health Centre for the first aid and, thereafter, was shifted to K.M.C. Hospital, Manipal, for further treatment, where according to the claimant's case, he was in-patient with his left leg plastered for the period from 16.4.1986 to 7.5.1986. The claimant's case is that he was admitted in the said hospital for skin-grafting and he was advised to take complete rest for nearly a month and thereafter, he appeared again for further check-up and removal of plaster on 6.6.1986. Petitioner-claimant further alleged that on examination by the doctors of the K.M.C. Hospital, Manipal, it was found that the fractures had not united and the injured was asked to continue with the plaster for a further period of 1 1/2 months. Again on 27.7.1986, the claimant had to go to the hospital and there plaster was removed and replaced by a crape bandage and he was advised to walk using the crutches. Claimant's case is that he was unable to move and walk without support of it and his left leg suffered with permanent disability. The claimant had been advised for another operation for resetting of the bones. Claimant's case is that on the date and immediately before the occurrence, claimant was earning Rs. 4,000 per month as a timber merchant with which he was maintaining his family, but as a consequence of the occurrence and disability caused, he became bedridden for long and could not carry on his work.

The claimant had claimed a sum of Rs. 2,64,000 for pecuniary loss, a sum of Rs. 8,000 as present medical expenses, a sum of Rs. 1,300 as taxi hire charges, a sum of Rs. 1,000 towards the attendant charges and a sum of Rs. 25,700 for mental shock and suffering. Thus, in total, the claimant made a claim for Rs. 3,00,000.

3. On notice being issued, statement of objection or written statement as I may say, was filed by the respondent No. 2 which had been adopted by the respondent Nos. 1 and 3 as well. The respondents denied the claim of the claimant-appellant and asserted that the occurrence did not take place at all due to the alleged rash or negligent driving of the jeep, in other words, the respondents denied that the jeep was being driven in a rash and negligent manner and they denied the occurrence having taken place on account of any alleged rash and negligent driving of the jeep. It was further asserted that the claimant was a pillion rider of the motor cycle and the same was driven by respondent No. 4 at a very high speed. It was also asserted that more than one person were sitting on the pillion. At the time of occurrence, there were three persons, the motor-cyclist and the two pillion riders. The respondents further pleaded that claim for quantum of compensation claimed is exorbitant and out of proportion to the alleged pecuniary loss.

Respondent No. 4 also filed the written statement. He admitted the accident causing injury to the claimant to have taken place on the date, at the time and place alleged in the claim petition. Respondent No. 4 denied the allegation to the effect that cause of occurrence was any such thing as rash and negligent driving or riding of the motor cycle by respondent No. 4. Respondent No. 4 asserted that the occurrence was solely due to rash and negligent driving of the jeep in question by respondent No. 3. Respondent No. 4 further asserted that if any compensation is payable to the claimant, then as the motor cycle has been insured, the liability for payment of the compensation is on respondent No. 5, the insurance company.

4. Respondent No. 5, the insurance company had also filed a written statement. It contended that respondent No. 4, as on the date of occurrence of accident, was not holding a valid driving licence and as the accident was the result of the rash and negligent driving of the jeep in question, the respondent No. 5, insurance company, was not liable.

5. On the basis of the pleadings of the parties, the Tribunal framed the following issues:

(1) Whether respondent No. 3 drove the jeep No. ABR 6533 belonging to respondent Nos. 1 and 2 rashly and negligently and caused injuries to petitioner, who was a pillion rider on motor cycle No. CNA 65?

(2) Whether respondent No. 4 drove his motor cycle No. CNA 65 rashly and negligently and caused injuries to petitioner, who was the pillion rider?

(3) Whether respondent No. 4 had a valid driving licence to drive the motor cycle?

(4) To what compensation and from whom the petitioner is entitled?

(5) To what relief?

6. After examining the material evidence on record, the Tribunal held that the accident causing injury to the claimant-appellant had taken place on the date, place and time as alleged and the cause for accident or occurrence was negligence by respondent No. 3, the driver of the jeep and respondent No. 4, the rider of the motor cycle. The Tribunal has used the words, 'contributory negligence of respondent Nos. 3 and 4'. It appears the expression contributory negligence has wrongly been used. It may be said the composite negligence of respondent No. 3, that is, the driver of the jeep belonging to respondent Nos. 1 and 2 and that of rider of the motor cycle, namely, respondent No. 4. While dealing with issue No. 4, as to the compensation, the Tribunal observed that the two pillion riders were also contributing to the negligence and it assessed the point of negligence of respondent Nos. 3 and 4 to be 75 per cent and the pillion rider, the claimant-appellant to be 25 per cent. The Tribunal further held that there is nothing on record to show that the motor-cyclist, respondent No. 4, did not possess a valid licence at the time of occurrence. The Tribunal has further held that the insurance company cannot be held liable to compensate the claimant for the reason that insurance policy which was issued by respondent No. 5, covered only third party and a pillion rider of insured vehicle will not come within the scope of third party, so as to make the insurance company liable to compensate the claimant. The Tribunal further held that the claimant was not able to work for 6 to 9 months on account of injury.

7. The Tribunal held the claimant-appellant to be entitled to compensation as mentioned below:

(i) For loss of income from the date of occurrence up to regaining of normalcy; Rs. 9,000 (ii) For pain and suffering and mental agony consequent to loss of skin and fractures of the tibia and the fibula; Rs. 20,000 (iii) For loss of amenities of life consequent to shortening of the leg by one cm., and initial limping with the possibility of the same being avoided in future by use of a high-healed shoe; Rs. 10,000 (iv) Medical expenses, conveyance and attendance charges. Rs. 5,600 Total Rs. 44,600

The Tribunal held that the claimant's monthly income is Rs. 1,000. The Tribunal further opined that there was 25 per cent of negligence of the claimant. So, to the extent of 25 per cent, out of total sum of Rs. 44,600, i.e., Rs. 11,160 will be deducted and the respondent Nos. 1 to 4 would be liable to pay a sum of Rs. 33,500 as compensation.

8. The claimant felt dissatisfied with the award and the sum awarded, has come in appeal before this Court.

I have heard the learned Counsel for the appellant Mr. N.S. Venugopal as well as Mr. Y.R. Sadashiv Reddy, learned Standing Counsel for the Government of India, at some length.

The learned Counsel for the appellant has contended that the income of the petitioner which has been assessed immediately before the accident to be Rs. 1,000 per month is based on no evidence. The learned Counsel contended that the unrebutted testimony of the petitioner's witness should have been accepted and in any case, even if it is assumed that there was any exaggeration in the monthly income of the injured claimant when he stated that his monthly income from his business of timber was Rs. 4,000, the extent of exaggeration could not be assumed to be more than 20 to 30 per cent and his monthly income, in absence of documentary evidence and evidence to the contrary as well as on the basis of the deposition of the injured, should have been assessed at least at Rs. 3,000 or Rs. 2,500. This contention of the appellant's counsel was challenged and to meet this contention of the appellant's counsel, the respondents' counsel contended that there is, no doubt, that the claimant has in his evidence stated that his monthly income from his business of timber was Rs. 4,000 after deduction of all expenses, but he has not produced any document. The learned Standing Counsel further contended that it has been admitted by the claimant that he was not an income-tax payer, so the Tribunal rightly assessed the income to be Rs. 1,000.

9. I have applied my mind to these contentions of the learned Counsel for both the parties. It appears both the sides were trying to submit at the excessive extremes. The margin of 50 per cent can be given, even if the claimant is stating that his income was Rs. 4,000, though firstly, his statement could be taken on its face value in absence of any evidence in rebuttal, but there may be exaggeration. So I think it proper that his monthly income may be taken to be running between Rs. 2,000 and Rs. 2,500, in no way, it can be said that his monthly income was less than Rs. 2,000. That may form the basis for assessment. This view, I am further taking for the reason that the injured has to carry on the overall food of family of 7 persons comprising himself, his wife, three children and two parents. So nominal income could be at least Rs. 2,000, no doubt, the claimant might not have been the income-tax payer, as income-tax was payable only over and above net income of Rs. 36,000 per year. So, if the appellant has stated that he was not paying income-tax, there was nothing wrong.

Thus considered, I am of the opinion, that the claimant-appellant must be having an earning of at least Rs. 2,000 per month and that may form the basis for assessment of damages for loss of income for a period of 9 months, during which the claimant did not and could not work at all. The claimant had not been able to work for about 9 months, as found by the Tribunal as well. As such, the claimant must be held to be entitled to a sum of Rs. 18,000 as compensation for the loss of income for the period of 9 months during which he could not work.

There is another aspect of the matter, the claimant had suffered permanent disability and his left leg has been shortened, he has developed-as a result thereof-limping. He cannot move without the help of a high-heeled shoe. His working capacity would definitely have been adversely affected and reduced. This fellow had to carry on with the deficiency of limping, etc., for the whole life. Looking to this aspect, that he will have to carry his deficiency and cripple ness for whole life, he will have to suffer loss in enjoyment of life during the entire period of life as well as his earning capacity has also been reduced, the appropriate compensation under the head of loss of amenities, deficiency in the earning capacity, etc., including future loss of income to certain extent, it would have been appropriate, if he is awarded a sum of Rs. 30,000 under this head.

As regards pain, suffering and injury to which he has been subjected, in my opinion, the Tribunal was justified in awarding a sum of Rs. 20,000 and it does not call for any enhancement; towards the medical expenses present and future as well as for nourishment and towards hiring of vehicle for being moved to hospital, etc., and for expenses towards the services of attendants, the sum that has been awarded to the tune of Rs. 5,600, is too low. Looking to the treatment which he is required to be given for the present and future as well as other expenditures towards nourishment and conveyance charges under this head, it would be just and proper to award a lump sum of Rs. 10,000 as compensation. Thus considered, in my opinion, instead of the appellant being held to be entitled to compensation to the tune of Rs. 44,600, the compensation should be enhanced and fixed at Rs. 78,000.

10. Learned counsel for the appellant raised another contention that the Tribunal has erred in making the deduction of 25 per cent from the amount of compensation on the ground of contributory negligence. Learned counsel contended that there could be no question of contributory negligence so far as the pillion rider is concerned. Pillion rider was sitting behind the rider of the motor cycle. It has come in the evidence that he also cautioned the motorcyclist or rider of the motor cycle to control the speed.

The learned Counsel further contended that there is no evidence to prove that the balance or control was disturbed, because there were two persons sitting as the pillion riders. Learned counsel submitted that no rule has been placed, as alleged, which may be providing that there cannot be two pillion riders.

This contention of the appellant was also controverted by the learned Standing Counsel of the Central Government and he contended that, though, there is no direct provision, but he invited my attention to Rule 143 (2) of the Karnataka Motor Vehicles Rules, 1989.

11. I have applied my mind to that rule. Rule 143 (2) provides that every pillion seat attached to a motor cycle shall (i) have two footrests one on either side of and directly below the seat fitted in such a manner that a person sitting on the pillion seat can rest his feet on such footrests.

This rule, in my opinion, does not support the contention of the respondents' counsel, it indicates that there may be one pillion rider or there may be two, but what is required is that every pillion seat attached to a motor cycle shall have two foot-rests, it means, if there are more than one pillion seat, then the footrests will also be there, no doubt, Sub-Rule (3) provided that no pillion seat shall be attached to a motor cycle with less than 100 cc engine. In this view of the matter, in my opinion, it has not been established or shown that there is any rule which prohibited more than one pillion rider on a motor cycle.

12. In the case of S.D. Balaji v. G.M., Karnataka State Road Transport Corpn., 1985 ACJ 150 (Karnataka), it has been held that a pillion rider has nothing to do with the accident and no deductions can be made from the compensation awarded to pillion rider on account of contributory negligence of the persons driving two vehicles involved in the accident. A pillion rider has got nothing to do with the matter of driving. There is a distinction between the contributory negligence and composite negligence. Contributory negligence applies solely on the conduct of the injured or the deceased, it means that there has been an act or omission on his part which materially contributed to the damage or injury.

13. In cases where a person is injured or his death takes place without negligence on his part, but as a result of combined effect of negligence of two other persons, such a case cannot be said to be a case of contributory negligence, may it be that occurrence may be said to be the result of composite negligence of the drivers of the two vehicles, but pillion rider has nothing to do which may be said to have caused or which may be said to have materially caused the accident.

When I so observe, I find support for my view from the decision of this Court referred to above, i.e., in the case of S.D. Balaji v. General Manager, Karnataka State Road Trans. Corpn., 1985 ACJ 150 (Karnataka), as well as from the decision of the Madras High Court in the case Pujamma v. G. Rajendra Naidu, AIR 1988 Madras 109, the material observations are at pages 111 and 112.

14. In the case of Devki Devi Tiwari v. Raghunath Sahai Chatrath, 1978 ACJ 169 (Allahabad), their Lordships of the Allahabad High Court also laid down the law to the effect that where two vehicles collided, as a result thereof, the occupant in one of the vehicles died or suffered injuries, the occupant of the vehicle, that is, the deceased or injured occupant cannot be held responsible for the contributory negligence, as he had not contributed to the negligence, the case may be of composite negligence of the drivers of the two vehicles.

15. The Punjab & Haryana High Court has also expressed the same view in the case of Jagdeep Singh v. Anokh Singh, 1987 ACJ 373 (P&H;).

Thus considered, in my opinion, the learned Tribunal erred in law in opining and holding that the injured appellant was liable for contributory negligence and ordering deduction of 25 per cent of the compensation assessed. In my opinion, the appellant could not, in the eye of law, be held to be liable for the accident, as he was simply a pillion rider. He was not driving a motor cycle and being a pillion rider ordinarily, no liability can be fastened for the accident on him and particularly, when it has come in the evidence that he was trying to caution respondent No. 4, the driver of the vehicle not to ride or move the vehicle at a higher speed. Thus considered, in my opinion, there is substance in the contention of the appellant's counsel that the Tribunal cannot direct the deduction of 25 per cent of the compensation amount, that finding and direction of the Tribunal being erroneous in law is hereby set aside.

Thus considered, in my opinion, as mentioned earlier, the claimant-appellant will be entitled to a sum of Rs. 78,000, as compensation, instead of Rs. 44,600 or Rs. 33,500.

16. The details of the compensation assessed are as under:

(a) As assessed by the Tribunal for injury, pain and suffering Rs. 20,000 (b) Compensation for loss of earning for the period of 9 months assessed at the rate of Rs. 2,000 per month Rs. 18,000 (c) For loss of amenities of life for disability caused which has to be carried by the injured for the whole life and loss of earning capacity and for loss or reduction of in- come for whole life. Rs. 30,000 (d) Whereas compensation for medical expenses present and future as well as for conveyance charges and nourishment, Rs. 5,600 the Tribunal has assessed and awarded under this head and the same is to be enhanced from Rs. 5,600 to Rs. 10,000 Rs. 10,000

Thus, the claimant-appellant is entitled in total to a sum of Rs. 78,000 as the compensation without any deduction. The Tribunal has rightly awarded interest on the amount of compensation from the date of petition till the date of actual payment at the rate of 9 per cent per annum.

17. The claimant will be entitled to interest at the rate of 9 per cent per annum as awarded by the Tribunal. This appeal is thus, partly allowed.