P.V. Desai, J.
1. In the claim petition instituted by the dependents of the deceased Motor Cyclist, who was killed in the course of an accident in which the other vehicle involved was a tanker insured by the appellant-Insurance Company, the compensation claimed was 'in the sum of Rs. 2,00,000/-, The Tribunal found that the deceased and the driver of the tanker were equally negligent and that both had contributed in equal measure to the happening of the accident. Having made the aforesaid finding, the Tribunal proceeded to assess damages. On a consideration of the evidence, the Tribunal found that the damages awardable to the claimants wider different heads worked out to Rs. 484,344/-. In view of its finding on the issue of contributory negligence, however the Tribunal held that the claimants were entitled to compensation in the sum of Rs. 1,42,172/- only, the said amount being one-half of the damages assessed by the Tribunal as payable to the claimants.
(Against decision of B. A. Patel, Motor Accidents Claims Tribunal (Main) Surat, in M.A.C. Petn. No. 12 of 1980.)
2. The sole contention of the appellant is that the Tribunal should have made it liable to pay by way of compensation a sum of Rs. 1,00,00/- (being 50% of the amount claimed) only not Rs. 1,42,172/- (being 50% of the assessed damages),
3. We are unable to agree. An identical question fell for consideration been namely fore one of us, namely A myself, in First appeal No.523 9 of 1975 decided on Sept 1977, under circumstances. In some what similar circumstances that case the injured claimant had instituted a claim petition wherein the claim for compensation was restricted to Rs. 9,999/-. The Tribunal, on assessment of evidence, had found: -
(1)that there was contributory negligence to the extent of 50% on the part of the claimant.
(2) that having regard to the evidence on record the claimant was entitled to an award in the sum of Rupees 21,000/-.
(3) that, however, the claimant having restricted his claim to Rs. 9,999/-, he was not entitled to claim damages in excess of the said sum, and
(4) that since the liability in respect of the accident was apportioned between the claimant and the tortfeasor in the ratio of 50 the claimant was entitled to damages in the sum of Rs. 4,999-50 paise being 50% of the amount claimed, feeling aggrieved by preferred the aforesaid First Appeal and, inter alia, contended that the Tribunal even if it was right in apportioning the blame for the accident between the claimant and the tortfeasor in the proportion of 50:50, ought to have awarded damages in the sum of Rs. 9000/-, being the damages, claimed and not in the sum of Rs. 4,999-50 paise, being 50% of the amount claimed by way of damages. This Court upheld the contention of the claimant in the following terms.
' .......... having reached the conclusion that the appellant was in law entitled to damages in the sum of Rs. 21,000/- all that the Tribunal could have done was to have made allowance to the extent of 50% in the said amount of Rs. 21,00,0/- and held that the appellant was entitled to Rs. 10,500/- on the basis of 50:50 apportionment of liability between the appellant and the first respondent. Since the amount of damages arrived at as aforesaid namely Rs. 10,500/- was in excess of the amount claimed, the Tribunal ought to have allowed the full claim made by the appellant. It is not open, in a case like the present to allow the apportionment to project into the claim made in the claim petition. Since even in the case of a restricted claim the Tribunal has to first arrive at the conclusion as to what is the true amount of damages which are awardable to a claimant, suitable allowance or deduction on account of apportionment of liability has first to be made after having arrived at the principal amount of damages. If on account of such allowance or deduction the amount awardable is less than the amount claimed then, of course, the award cannot exceed the sum awardable as aforesaid. If, however, the sum awardable as aforesaid is in excess of the claim made by the claimant, then. no further reduction is required to be made and the claimant would be entitled to the full amount claimed in the petition. Damages awardable and damages claimed are two distinct concepts and in a case like the present any deduction or allowance to be made on account of apportionment of liability has to be effected in the damages awardable and not the damages claimed. The Tribunal was, therefore, in error, in the facts and circumstances of the present case, in not awarding to the appellant the full amount of Rs 9999/- claimed by him in as much as the said amount was less than the amount which was awardable, i.e. Rs. 10.500/-.
4. We are in agreement with the view expressed as above. Under the circumstances the contention advanced on behalf of the appellant must be rejected not think that the appeal raises a substantial question of law of general public importance which needs to be decided by the Supreme Court. Under the circumstances the request for a certificate is rejected.
5. No orders on civil application.
6. Under the circumstances the appeal is summarily dismissed.
7. No orders on civil application.
8. Mr. P.V .Nanavati orally prays for a certificate of fitness under Article 133 of the Constitution of India. We do not think that the appeal raises a substantial question of law of general public importance which needs to be decided by the Supreme Court, Under the circumstances the request for a certificate is rejected.
9. Appeal dismissed.