The court ruled that third-party claimants should not have their compensation reduced due to the negligence of another party involved in the accident, emphasizing their right to recover full compensation from any tort feasor.

ORAL JUDGMENT

Judgment and award rendered in MACP No.26 of 2021 on 28/06/2023 by the MACT (Auxi), Tapi at Vyara is sought to be challenged in this appeal whereby the tribunal partly allowed the claim petition awarding compensation of Rs.55,944/- with 6% interest against the total claim of Rs.5,00,000/-.

2. The sole contention of learned advocate for the appellant is that though the tribunal referred the decision of Apex Court in case of Mallikarjun vs. Divisional Manager, the National Insurance Company Limited 2013 ACJ 2445 did not follow the command made therein to grant the compensation; and granted Rs.1,10,000/- as per disability certificate which should be granted Rs.3,00,000/- in proportionate. Moreover, the tribunal has assessed the inter se negligence of the driver of the offending vehicle and deducted negligence of the driver of the Mestro scooter despite the aspect that the claimant is the third party.

3. Learned advocate Mr.Modi would submit that tribunal erred in granting the compensation on lessor side instead of granting Rs.3.00 Lakhs granted Rs.1,10,000/- only and taking proportionate that since the minor victim has sustained disability in 11% amount is to be granted to Rs.1,10,000/-. This finding and assessment for awarding compensation is in gross violation of decision in case of Mallikarjun (supra) . He would further submit that the claimant was third party and in view of decision in case of Khenyei Versus New India Assurance Company Limited [2015 (9) SCC 273] it is the choice of the claimant to recover the amount of compensation from any of the tort feasors.

3.1 Learned advocate Mr.Modi would submit that another vehicle involved is Mestro scooter and tribunal assessed the self negligence of the minor claimant and deducted from the compensation which could be granted. This is another gross violation in view of decision in case of Mallikarjun (supra) and in contrast to the decision in case of Khenyei (supra) . He would submit that in view of Khenyei (supra) respondent no.3 – insurance company can recover the amount of compensation from the driver of the Mestro to the tune that she held negligence in causing the road accident. Since the driver of the offending vehicle Mestro is not party to the proceedings, the submission is left without any reason.

4. I have heard learned advocate Mr.Rushang Mehta appearing for the insurance company. The tribunal though referred to the judgment of Mallikarjun (supra) but has not considered the ratio laid down therein while awarding compensation. Since the claimant has received injury in tune of 11% the fiat of the judgment in case of Mallikarjun (supra) operates and the tribunal was required to grant Rs.3.00 Lakh towards the compensation; but the tribunal has granted lessor amount and as such amount of compensation is required to be enhanced.

5. Moreover, the decision in case of Khenyei (supra) has also been allowed to go by the tribunal. Undisputedly, the claimant is third party and pillion rider in the Mestro scooter. Accident took place between Mestro scooter and Tavera Car. Driver of Mestro and Tavera car on the facts of the given case can be considered as tort feasor. The inter se negligence of the tort feasors in case of third party could be treated as composite negligence as explained by Hon’ble Apex Court in Khenyei (supra) . The claimant in the present case who is not contributory in causing road accident should have to be treated as third party and she has election to recover the amount of compensation from either of the tort feasors severally and jointly. According to this court, the tribunal committed error in deducting the negligence of the amount of driver of the Mestro scooter. Thus, the award is required to be modified to that effect.

6. For the foregoing reasons, the appeal is allowed. The impugned award is modified to Rs.3,00,000/- plus medical expenses Rs.1,887/- totalling Rs.3,01,887/- with interest @ 6% p.a. from the date of Claim Petition till realizatio