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2004 DIGILAW 999 (RAJ)

Heer Singh v. Jai Singh

2004-07-19

SUNIL KUMAR GARG

body2004
Honble GARG, J.–This civil misc. appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1988) has been filed by the claimants appellants against the judgment and award dtd. 15.5.1989 passed by the learned Judge, Motor Accident Claims Tribunal, Jodhpur in Claim Cases No. 106/85 and 85/1986 by which he awarded a sum of 60,000/- as compensation to the claimants - appellants on account of death of Smt. Madan Kumari (hereinafter referred to as the deceased) and Rs. 200/- on account of damage caused to the Hero Majestic Moped No. RRN 4059 (hereinafter referred to as the Moped in question), but this appeal has been filed by the appellants - claimants who are legal representatives of the deceased for enhancement of the amount of compensation. (2). It arises in the following circumstances: i) That the appellants - claimants filed claim petition before the Motor Accident Claims Tribunal, Jodhpur (hereinafter referred to as the ``Tribunal), on 9.12.87 claiming a sum of Rs. 3,50,000/- as compensation on account of death of the deceased in the accident alleging inter alia that on 11.10.85 at about 9 a.m. Appellant No. 2, Vinod Kumar along with his mother Smt. Madan Kumari (deceased) was going on moped in question from their residence towards Raikabagh Bus Stand. It was further stated that the moped was being driven by appellant No. 2 Vinod Kumar and Smt. Madan Kumari (deceased) was sitting as pillion rider on the back of the moped in question. It was further stated in the claim petition that when moped reached near Khet Singh Ji ka Bunglow situated on Jodhpur - Mandore Road, appellant No. 2 Vinod Kumar joined the main road from the road coming from ship house and after joining the main road, he turned towards the road leading to Paota and Raikabagh. It was further stated in the claim petition that when moped reached near Khet Singh Ji ka Bunglow situated on Jodhpur - Mandore Road, appellant No. 2 Vinod Kumar joined the main road from the road coming from ship house and after joining the main road, he turned towards the road leading to Paota and Raikabagh. It was further stated that after the appellant No. 2 took turn towards Paota and Raikabagh, a truck bearing No. RJO 3778 (hereinafter referred to as the truck in question) which was being driven by respondent No. 1 Jai Singh rashly and negligently and owned by respondent No. 2 Santok Singh and insured with respondent No. 3 (National Insurance Company) came from behind with a very great speed and dashed against the moped in question which was being driven by appellant No. 2 Vinod Kumar, as a result of that accident, the deceased died. ii) That the respondent No. 3 filed reply to the claim petitions and after filing reply, the learned Tribunal framed six issues. iii) That the learned Tribunal after recording evidence and after hearing the parties, passed the award dtd. 15.5.89 in the manner as stated above and while deciding issue No. 1, the learned Tribunal came to the conclusion that the accident took place not only because of rash and negligent driving by the respondent No. 1 Jai Singh (driver of the truck in question), but the learned Tribunal also held that Vinod Kumar (appellant No. 2) who was riding the moped in question was also equally negligent and therefore though he came to the conclusion that the claimants - appellants were entitled to Rs.1,20,000/-, but since there was 50% contributory negligence on the part of Vinod Kumar (Appellant No. 2), therefore, he awarded compensation of Rs. 60,000/- only to the claimants - appellants. iv) Aggrieved from the judgment and award dtd. 15.5.89, this appeal has been preferred by the appellants. (3). In this appeal, findings on issue No. 1 have been challenged seriously and main submission of the learned counsel for the claimants appellants is that at the most if there was contributory negligence, that was between appellant No. 2 Vinod Kumar and the driver of the truck in question, but there was no contributory negligence on the part of the deceased and hence the Tribunal wrongly deducted the amount of compensation to the tune of 50%. It has further been submitted by the learned counsel for the appellants that it was a case of composite negligence and not a case of contributory negligence and it has been further submitted that since there was no contributory negligence of the deceased, therefore, legal representatives of the deceased were entitled to get full compensation as determined by the learned Tribunal and hence the findings of tribunal regarding deduction of 50% of the amount of compensation are liable to be set aside and this appeal deserves to be allowed. (4). On the other hand, the learned counsel for the respondent No. 3 has supported the impugned judgment and award passed by the Tribunal. It has been further submitted by the learned counsel for the respondent No. 3 that for the pillion rider, Insurance Company cannot be held liable and hence the appeal be dismissed. (5). I have heard the learned counsel for the parties and gone through the materials available on record. (6). There is no dispute on the point that at the time of accident, the deceased was sitting on the back of the moped and the moped was being driven by appellant No. 2 Vinod Kumar who was the son of the deceased. (7). There is also no dispute on the point that the claimants are legal representatives of the deceased. (8). There is also no dispute on the point that the accident took place between the moped in question and the truck in question and as a result of the accident, the deceased who was sitting as pillion rider on the moped in question died. (9). There is also no dispute on the point that the award was passed against the respondents including respondent No. 3 which was Insurance Company of the Truck in question, jointly and severally. WHETHER CONTRIBUTORY NEGLIGENCE OF THE DRIVER OF THE VEHICLE CAN BE ATTRIBUTED TO ITS PILLION RIDER. (10). The question which arises for consideration is whether in the facts and circumstances of the case, contributory negligence of the driver of the vehicle can be attributed to its pillion rider or not. (11). Contributory negligence is an expression which implies that the person who has suffered damage, is also guilty of some negligence and has contributed towards the damage. The question which arises for consideration is whether in the facts and circumstances of the case, contributory negligence of the driver of the vehicle can be attributed to its pillion rider or not. (11). Contributory negligence is an expression which implies that the person who has suffered damage, is also guilty of some negligence and has contributed towards the damage. In such a case, the Court has power to apportion the loss between the parties, who can be held guilty of negligence by act or omission on their part as it deems just and equitable. (12). In other words, contributory negligence arises when there is an act or omission on the part of the plaintiff which has certainly contributed to the accident. COMPOSITE NEGLIGENCE (13). Pollock in his book on Torts, 15th edition at page 361, 362 has defined composite negligence in the following terms: ``where negligent act of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out when he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage, to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he cannot recover in the whole more than his whole damages. The phrase `contributory negligence of a third person, which has sometimes been used, must therefore, be rejected as misleading. (14). The principles of composite negligence are that the person wronged has a choice of proceeding against all or any one or more of the wrongdoers and every wrongdoer is liable for the whole damages if it is otherwise made out. In case of composite negligence, the claimant can proceed against any of the joint tortfeasors or against all of them as they are joint and severally liable. (15). Thus, when the accident occurs and the resultant injuries and damage flow without any negligence on the part of the claimant, but if the accident results from the negligence on the part of the claimant, but if the accident results from the negligence on the part of two or more persons, it is a case normally styled in legal parlance as composite . In other words, when death or injury to a person results from collision of two vehicles due to negligence of both the drivers it is called ``composite negligence. DISTINCTION BETWEEN CONTRIBUTORY NEGLIGENCE AND COMPOSITE NEGLIGENCE. (16). There is a clear distinction between contributory negligence and what is termed as composite negligence. The term `contributory negligence applies solely to the conduct of a plaintiff. It means that there has been an act or omission on his part, which has materially contributed to the damage. But in the case of composite negligence both the parties can be held liable for compensation. In the case of contributory negligence, there has been an act or omission on the part of the plaintiff which has materially contributed to the accident and as such, the liability has got to be apportioned. But in the case of composite negligence, it may not be necessary for the Claims Tribunal to apportion the liability between the wrongdoers. (17). Thus, keeping the above principles in mind, if there is collusion between the bus and motor-cycle due to negligence of bus driver as well as motor-cyclist resulting either in injury or death to pillion rider, in my considered opinion, contributory negligence of the motor-cyclist, in the present case of the driver of the moped in question cannot be attributed to the pillion rider. Thus, the question formulated in para 10 of the judgment is answered accordingly. (18). Therefore, the findings of the learned Tribunal that since accident took place because of contributory negligence of Vinod Kumar who is son of the deceased, therefore, 50% of the amount of compensation was required to be deducted from the total amount assessed cannot be sustained as there was no negligence on the part of the deceased who was sitting as pillion rider and thus the appellants - claimants are entitled to the entire amount of compensation assessed by the learned Tribunal and the findings of the learned Tribunal regarding deduction of 50% of the assessed amount are wrong one and cannot be sustained. (19). During the course of arguments, it has been submitted by the learned counsel for the respondent No. 3 that Insurance Company cannot be held liable for the death or injury caused to the pillion rider. (20). (19). During the course of arguments, it has been submitted by the learned counsel for the respondent No. 3 that Insurance Company cannot be held liable for the death or injury caused to the pillion rider. (20). Now, the another question which arises for consideration is whether pillion rider is covered with the expression 3rd party against the insurance company of the truck or not. (21). In this respect, distinction has to be drawn between the Insurance Company of the Truck as well as of moped. THIRD PARTY (22). The expression ``Third party has not been defined in the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1988). Section 145(g) of the Act of 1988 simply says that ``Third Party includes the Government. Generally, the word ``include is used in order to enlarge the meaning of words of phrases occurring in the body of the statute. The word in respect of which ``include is used bears both its extended statutory meaning and its ordinary, popular and natural sense whenever that would be properly applicable. In this respect, reference can be made on Maxwell on Interpretation of Statutes, 12th Ed. P.270. In strouds Judicial Dictionary, 3rd Ed., Vol. 4 PP. 3019-3020, the expression ``Third Party Risks has been given as below: ``Third Party Risks connotes that the insurer is one party to the contract, that the policy holder is another party, and that claims made by others in respect of the negligent use of the car, may be naturally described as claims by third parties. (23). The Privy Council in Digby vs. General Accidents, Fire and Life Assurance Corporation (1), accepted the meaning of the expression ``Third Party as given in Strouds Judicial Dictionary. (24). Third party Risk Policy covers liabilities for death or injury caused to a third person or damage caused to the property of a third person arising out of the use of a motor vehicle. In this way, this policy is wider than an Act policy. The object of the provisions of Chapter XI of the Act of 1988 is to see that third parties who have to suffer on account of the use of the motor vehicle get damages for injuries suffered. Its ancillary object is also to see that their ability to get damages does not depend on the financial condition of the driver of the vehicle. Its ancillary object is also to see that their ability to get damages does not depend on the financial condition of the driver of the vehicle. As held in New Asiatic Insurance Co. Ltd. vs. Passumal Dhanmal (2), by the Honble Supreme Court, the provisions are to be construed in a manner ensuring this object of the enactment. The liability of the insurer to third parties being statutory, the right of third parties flows from the statute and is not contractual. An insurer cannot avoid the liability to third parties in spite of the fact that the insurer is entitled to avoid or cancel the policy for breach of certain restrictions or conditions. (25). Thus, from the above discussion, it becomes clear that the Third Party is altogether different from the policy holder and the Insurance Company and its rights are not dependent on the terms and conditions which have taken place on insurer and insured. (26). Thus, it is held that in a collision between a scooter and a truck, if the man sitting on the pillion of the scooter (in the present case moped) received injuries or died, so far as insurance Company of the truck is concerned, pillion rider would be 3rd party against the Insurance Company of the Truck. Therefore, the arguments raised by the learned counsel for the respondent No. 3 that the insurance company of the truck could not be held liable for pillion rider cannot be accepted. However, it is made clear that pillion rider may not be termed as 3rd party so far as Insurance Company of Moped is concerned, but since in this case, award has been passed against the Insurance Company of the truck, therefore, the claimants of the deceased are 3rd party against the Insurance Company of the truck as in this case accident took place between the truck and the moped. For the reasons stated above, law laid down in the following cases cited by the learned counsel for the respondent No. 3 would not be helpful to the learned counsel for the respondents No. 3 so far as facts of the present case are concerned: 1. Surjit Singh vs. Santosh Kumari (3), 2. George Oakes Company vs. V.S. Govindarajan (4), 3. New India Assurance Co. Ltd. vs. K.V. Sree Devi (5), 4. Sada Nirmala vs. Sri Indrapaul Singh (6), and 5. Surjit Singh vs. Santosh Kumari (3), 2. George Oakes Company vs. V.S. Govindarajan (4), 3. New India Assurance Co. Ltd. vs. K.V. Sree Devi (5), 4. Sada Nirmala vs. Sri Indrapaul Singh (6), and 5. National Insurance Company Ltd. vs. V. Vasantha (7). (27). It may be stated here that the learned Tribunal came to the conclusion that the claimants - appellants were entitled to compensation of Rs. 1,20,000/-, but because of contributory negligence of moped driver, the learned Tribunal awarded only Rs. 60,000/- and because these findings of the learned Tribunal cannot be said to be proper and sustained, therefore, the appellants are entitled to get compensation of Rs. 1,20,000/- in place of Rs. 60,000/- against the respondents including respondent No. 3 which is Insurance Company of the truck. (28). For the reasons mentioned above, the appeal filed by the appellants is liable to be allowed and the findings on issue No. 1 are liable to be reversed and, the judgment and award dtd. 15.5.89 passed by the learned Judge, Motor Accident claims Tribunal deserves to be modified to the above extent. Accordingly, the appeal filed by the appellants is allowed and the compensation payable to the appellants is hereby enhanced from Rs. 60,000/- to Rs. 1,20,000/- as assessed by the Tribunal and the claim of the appellants - claimants is decreed for a sum of Rs. 1,20,000/- against all the respondents including respondent No. 3 jointly and severally and since in this case Rs. 60,000/- have already been paid by the respondents therefore, the appellants shall get interest @ 9% per annum on the amount of Rs. 60,000/- from the date of award i.e. 15.5.1989 till the date of payment. The judgment and award dtd. 15.5.1989 passed by the learned Judge, Motor Accident Claims Tribunal stands modified to the above extent. Cost made easy.