GUJARAT HIGH COURT
Before:- Mr. M.R. Shah, J.First Appeal No. 2029 of 2008. D/d. 25.02.2016.
Minor Shaktisinh Zala - Appellants
Versus
Zala Ranvirsinh Ranubha & 4 - Defendants
For the Appellants No. 1 :- Mr. Yogendra Thakore, Advocate.For the Defendants No. 1 and 5 :- Rule Served.
JUDGMENT
Mr. M.R. Shah, J. (Oral) - Feeling aggrieved and dissatisfied with the impugned and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Mehsana (hereinafter referred to as “the tribunal”) in MACP No.795/2005
by which after deducting 10% towards the negligence of the original claimant and deducting 60% towards the negligence of the original owner of the Motorcycle involved in the accident the learned tribunal has awarded a total sum of Rs. 10,200/- towards compensation for the injuries and the permanent partial disability sustained by the original claimant with 7.5% interest thereon from the date of the Claim Petition till realisation, the original claimant has preferred the present First Appeal.
by which after deducting 10% towards the negligence of the original claimant and deducting 60% towards the negligence of the original owner of the Motorcycle involved in the accident the learned tribunal has awarded a total sum of Rs. 10,200/- towards compensation for the injuries and the permanent partial disability sustained by the original claimant with 7.5% interest thereon from the date of the Claim Petition till realisation, the original claimant has preferred the present First Appeal.
2. In a vehicular accident which occurred on 22/08/2005 between Motorcycle No.GJ 2 AA 5546, which at the relevant time was being driven by the original claimant-minor and one Jeep No.GJ 2 R. 3829, the original injured claimant driver of the Motorcycle sustained injuries and permanent partial disability to the extent of 7% on the body as a whole, and therefore, the original injured claimant, through his father, filed the aforesaid Claim Petition before the learned tribunal claiming a total sum of Rs. 1 lakh towards compensation.
2.1. On appreciation of evidence, the learned tribunal has as such held the driver of the Jeep involved in the accident sole negligent for the accident. On appreciation of evidence, the learned tribunal has determined Rs. 34,000/- towards compensation under different heads. However, as the original injured claimant-driver of the Motorcycle was not holding the valid license to drive the Motorcycle and the original owner of the Motorcycle-father of the original claimant permitted his minor son to drive the Motorcycle though he was not having a valid driving license, the learned tribunal has deducted 10% and 60% respectively towards their negligence and by the impugned judgment and award has actually awarded Rs. 10,200/- being the remaining 30% with 7.5% interest thereon from the date of Claim Petition till realisation.
Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal on quantum as well as deducting 70% towards negligence, the original claimant has preferred the present First Appeal.
3. Shri Y.M. Thakore, learned advocate appearing on behalf of the appellant-original claimant has vehemently submit that the learned tribunal has materially erred in deducting 70%, out of the total compensation awarded, on the ground that the original injured claimant was not having valid driving license to drive the Motorcycle and on the ground that even the original owner was negligent to the extent permitting his son to drive the Motorcycle, though he was not having valid driving license to the drive the Motorcycle. It is submit that on the aforesaid ground the learned tribunal ought not to have and/or could not have deducted 70% towards negligence. It is submit that as such the learned tribunal has held the driver of the Jeep involved in the accident sole negligent for the accident. It is submit that therefore once the driver of the offending vehicle/Jeep is held to be sole negligent for the accident, the original claimant is entitled to full compensation from the driver – owner and insurer of the Jeep involved in the accident.
3.1. It is vehemently submit by Shri Thakore, learned advocate appearing on behalf of the original claimant that while awarding compensation either in case of death and/or injury only that much amount i.e. percentage of amount is required to be deducted for which the deceased and or the injured is held to be negligent/contributory negligent. It is submitted that once the driver of the offending vehicle i.e. Jeep is held sole negligent in the accident, the learned tribunal is not justified in deducting any amount or percentage of amount on the ground that the driver of the Motorcycle i.e. in the present case the original injured claimant (who is as such not held to be negligent at all) was not holding any valid driving license and/or deducting 60% towards the negligence of the owner of the Motorcycle in permitting his minor son to drive the Motorcycle though he was not holding any valid license to drive the Motorcycle.
3.2. Now so far as the quantum of amount of compensation is concerned, Shri Thakore, learned advocate appearing on behalf of the original claimant has heavily relied upon the recent decision of the Hon’ble Supreme Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Ltd. reported in 2014 (14) SCC 396. It is submitted that in the aforesaid decision the Hon’ble Supreme Court was considering the issue with respect to compensation with respect to child victim and in the said decision the Hon’ble Supreme Court in paragraph 12 has observed and held that appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs and for permanent disability upto 10% it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick. It is submitted that in the present case the permanent partial disability is less than 10%, and therefore, as per the decision of the Hon’ble Supreme Court the original claimant shall be entitled to Rs. 1 lakh in all towards compensation.
Making the above submissions, it is requested to allow the present Appeal.
4. The present Appeal is vehemently opposed by Shri Nagesh Sood, learned advocate appearing on behalf of the Insurer. Shri Sood, learned advocate appearing on behalf of the Insurer has initially tried to oppose the present Appeal by submitting that in the facts and circumstances of the case, more particularly, when it is found that the original injured claimant was driving the Motorcycle though he was not having a valid license to drive the Motorcycle and when it is found that the owner of the Motorcycle who also happens to be the father of the injured claimant permitted his minor son to drive the Motorcycle though he was not having the valid license to drive the Motorcycle and to that extent both of them can be said to be negligent, and therefore, the learned tribunal has rightly deducted 70% towards their respective negligence. However, ultimately, he has failed to satisfy the Court how the learned tribunal is justified in deducting 70% from the entitlement when in the present case the driver of the offending vehicle-Jeep is as such held to be sole negligent for the accident.
4.1. Now so far as quantum of amount of compensation is concerned, Shri Sood, learned advocate appearing on behalf of the Insurer has requested to pass appropriate order and award just compensation.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that in a vehicular accident between the Motorcycle No. GJ 2 AA 5546, which at the relevant time was being driven by the original injured claimant-minor and one Jeep No. GJ 2 R. 3829, driver of the Motorcycle-original injured claimant sustained permanent partial disability to the extent of 7%. It is also required to be noted that as such on appreciation of evidence, the learned tribunal has held the driver of the Jeep involved in the accident sole negligent in the accident. Under the circumstances and normally once the driver of the offending vehicle is held to be sole negligent for the accident the original claimant is entitled to the compensation from the driver-owner and the Insurer of the vehicle whose driver is held to be sole negligent. As per settled proposition of law only that much amount is required to be deducted and/or original claimant is not entitled to the extent he is held contributory negligent for the accident. However, in the present case, the learned tribunal has deducted 70% i.e. 10% towards negligence of the minor injured claimant and 60% towards negligence of the father-owner of the Motorcycle permitting his minor son to drive the Motorcycle though he was not holding valid license to drive the Motorcycle. On the aforesaid ground no amount of compensation could have been deducted and/or denied to the original claimant, more particularly, when so far as the accident is concerned the original injured claimant is not held negligent/contributory negligent at all. At the cost of repetition it is to be noted that in the present case on appreciation of evidence, the learned tribunal has held the driver of the Jeep sole negligent for the accident. It is true that the minor could not have and ought not to have driven the Motorcycle in absence of any driving license. It is true that the minor could not have and ought not to have driven the Motorcycle in absence of any driving license. It is true that even the original owner of the Motorcycle ought not to have permitted the minor son to drive the Motorcycle without any valid license. However, even while deducting any amount towards negligence of any owner permitting the minor to drive the Motorcycle without holding any valid license either side is required to prove that the minor took the Motorcycle with the knowledge of which the owner of the vehicle had a knowledge and despite the same he permitted the minor to drive the Motorcycle without holding any valid license. In any case and as observed herein above, once the driver of the offending vehicle is held to be sole negligent for the accident and the driver of the Motorcycle, may be minor, may not be having a valid license is not held to be negligent and/or contributory negligent at all for the accident, there shall not be any deduction on the aforesaid ground. For the aforesaid, the original injured claimant and/or even the owner of the Motorcycle can be said to have committed the offence of some other statute and/or committed breach of some of the provisions of the Motor Vehicles Act.
5.1. However, so far as quantum of amount of compensation is concerned, if the driver of the offending vehicle is held to be sole negligent the original claimant is entitled to the entire amount of compensation without any deduction from the driver-owner and the insurer of the offending vehicle. In other words while awarding the compensation there can be the deduction, however, such deduction should and shall be to the extent the original claimant (in case of injury) and/or deceased is held to be negligent and/or contributory negligent.
6. Under the circumstances and in view of the above and for the reasons stated herein above, the learned tribunal is not justified in deducting 70% towards the negligence of the original injured claimant and the owner of the Motorcycle on the ground that though not having valid license to drive the Motorcycle the injured claimant was driving the Motorcycle and that the owner of the Motorcycle permitted his minor son to drive the Motorcycle though he was not holding any valid license to drive the Motorcycle.
6.1. Now so far as quantum of amount of compensation is concerned, identical question came to be considered by the Hon’ble Supreme Court in the case of Master Mallikarjun (Supra). In the aforesaid decision the Hon’ble Supreme Court considered the question with respect to compensation and with respect to child victim. After considering some earlier decisions of the Hon’ble Supreme Court in paragraph 12 the Hon’ble Supreme Court has observed and held as under;
- “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60% ,Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90% , it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents.”
7. In view of the above and for the reasons stated herein above, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.795/2005 is hereby modified to the extent and it is held that the original claimant shall be entitled to compensation to the extent of Rs. 1 lakh with 9% interest thereon from the date of Claim Petition till realisation. The balance enhanced amount to be deposited by the respondents with the learned tribunal within eight weeks from the date of the present order and the same be paid to the original claimant by way of account payee cheque on proper verification and identification by the learned tribunal itself.
8. With this, the present Appeal is partly allowed. In the facts and circumstances of the case, there shall be no order as to costs.
Appeal partly allowed.
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COMMENTS