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2005 DIGILAW 3014 (RAJ)

Said Peer Asraf Shah Jilani v. Indra Jeet

2005-11-17

VINEET KOTHARI

body2005
Judgment Vineet Kothari, J.-These six appeals are disposed of by a common Judgment as the Tribunal also decided these various six claim petitions by a common order and they pertain to same accident which took place on 211.1995 between Jeep No. RJ-04/C-101 with Truck No. PB-10F-9991 while the said Jeep was being driven by Mohammad Isa going from Dhorimanna to Barmer. It was a case of head on collision between the said Jeep and the Truck at the center of the road and, therefore, the Tribunal while deciding the issue No. 1 held that it was a case of contributory negligence of both the drivers of Jeep and Truck and, therefore, the liability to pay the compensation was apportioned to the extent of 50% between the two vehicles -the Jeep owner and insurer of the truck. The Jeep owner was not impleaded as respondent by the claimants of the deceased persons, who were persons of the ill fated Jeep. On account of the said accident, 5 persons died namely driver of the Jeep - Mohd. Isa his wife Nazma, his daughter Ume Gulshan, one Umehani Bibi d/o Ashraf Shah and Sherbano d/o Peer Dada Mian Jilani. Two persons Mohd. Salim and Gulam Hussain suffered injuries. 2. Out of the six claim petitions, five are for the five deaths resulting out of the said accident and one is by the owner of the Jeep No. RJ04-C/101 (Claim Case No. 182/1996) Mairaj Ali is by the owner of the Jeep and the Appeal No. 185/1998 arising out of the Claim Case No. 49/1996 pertains to death of Mohd. Isa, - driver of the Jeep. 3. As far as finding of the Tribunal while deciding the issue No. 1 holding drivers of both the vehicles to the extent of 50% is concerned, in the opinion of this Court, the said finding does not call for any interference in view of the evidence before the Tribunal, who after examining the site plan etc. found that both these drivers were liable since, it is a case of contributory negligence. 4. As far as claim in relation to driver Mohd. Isa and owner of the Jeep is concerned, the said claim as determined by the Tribunal, does not call for any interference and the amount of compensation as well as the amount of loss of property i.e., the Jeep, also does not call for any interference. 4. As far as claim in relation to driver Mohd. Isa and owner of the Jeep is concerned, the said claim as determined by the Tribunal, does not call for any interference and the amount of compensation as well as the amount of loss of property i.e., the Jeep, also does not call for any interference. 5. Learned Counsel for the appellants for other claimants representing the four other deceased persons belonging to the same family, contends that even if the driver of the Jeep is held liable of contributory negligence to the extent of 50%, the passengers of the ill fated Jeep cannot be said to have contributed in any manner to the negligence of the said driver and, therefore, the compensation awarded by the Tribunal for such other deceased person cannot be restricted to 50% as far as the insurer of the other vehicle involved in the said accident is concerned because it is a case of composite negligence for them and law is fairly well - settled in this regard that in case of composite negligence, the claimants have a right to choose to proceed against any one of the joint tort feasors, as their liability in law is joint and several. He relies upon following Judgment s in this regard: Karnataka State Roadways Transport Corporation vs. Arun, reported in 2004 ACJ page 249. Beaudri & Ors. vs. Kiess & Ors., (Canada SC) reported in 1968 ACJ page 34. Om Wati vs. Mohd. Deen (Delhi), reported in 2002 ACJ page 868, NIA vs. Kasturi Devi (Raj.), reported in 1998 ACJ page 8. Dhapa Kanwar vs. Kishan Lal & Anr., reported in 1992 ACJ page 163. 6. It would be relevant to produce Paras 10 and 11 of the Delhi High Court decision in Omwatis case dealing with the concept of composite negligence and right of claimant to proceed against any one of them. “10: It logically follows from this that a claimant could choose to file a claim petition against all or any one of them and it was not necessary that he should implead all joint tort feasors as party respondents because they were only proper parties and not necessary parties. “10: It logically follows from this that a claimant could choose to file a claim petition against all or any one of them and it was not necessary that he should implead all joint tort feasors as party respondents because they were only proper parties and not necessary parties. It may as well be that claimant had not set up a case of composite negligence but if there was material on record to suggest so, neither Tribunal nor Court was disabled or incompetent to record a finding in this regard. Support for this is derived from a D.B. Judgment of Gujarat High Court in Hiraben Bhaga vs. Gujarat State Road Transport Corpn., 1982 ACJ (Supp) 414 (Gujarat), holding as under:-“It passes ones understanding as to how could a passengers compensation be deducted on account of the contributory negligence of the driver of a vehicle. It is entirely the choice of the claimant whether to implead both the joint tort feasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of one of the joint tort feasors, if they fail to impaled him as one of the opponents, in their claim petition. It would be for the impleaded joint tort feasor to take proceedings to get the other joint tort feasors impleaded in the claim petition, or for that matter such an impleaded joint tort feasor may select to sue the other one after the decree or award is given and the other joint tort feasor is held liable therein. It would be, however, quite a different argument to advance that because the claimants did not sue one of the tort feasors, they themselves should be held liable for the deduction of the amount, which the omitted joint tort feasor would have been called upon to pay. Thus, there would be no deduction in the amount of compensation awarded to the appellants, as done by the Tribunal.” 11. Thus, there would be no deduction in the amount of compensation awarded to the appellants, as done by the Tribunal.” 11. We, therefore, hold that it was a case of composite negligence in case of Shiv Singh and Sat Pal and their claimants had an option to file the claim petition either against all or any one of the joint tort feasors and their failure to implead the tortfeasors of the car was not fatal for their claim and that First Appellate Court had wrongly forfeited their 30 per cent share of awarded compensation amount for this which they were entitled to recover from the appellant company, being insurer of tort feasors truck. It would then be open to the company to recover such amount from the owner/insurer of the car jointly or severally.” 7. The Canada Supreme Court while dealing with a case of composite negligence in the case of Beaudrys case held as under: -“9. It is contended that the burden of a Judgment for damages for negligence cannot be apportioned between a defendant and a third party since it is said that there can be no contribution between joint tortfeasors and that third party procedure is limited to claims for indemnity or contribution and that indemnity is limited to claims under contract or arising out of a relationship giving rise to an implied contract; Eastern Shipping Co. Ltd. v. Quah Beng Kee; Wade vs. Marsolais; and Mahoney vs. C. Nor. R. Co., are cited in support of this contention. 10. These cases were decided under third party Rules quite different from those now in effect in British Columbia. That under which the Mahoney case was decided like that at one time in effect in England confined third party proceedings to cases of contribution or indemnity solely and did not permit a claim “for other relief over”. 11. InHenshall and Henshall vs. Holt and Noble, the Court though not so deciding, apparently proceeded on the assumption that in the absence of any problem created by legislation relating to gratuitous passengers, liability for damage done to a plaintiff in a motor vehicle accident occasioned by the negligence of a defendant and a third party could be apportioned between them. At that time third party relief was limited to claims for “contribution or indemnity ... or any other relief over”. At that time third party relief was limited to claims for “contribution or indemnity ... or any other relief over”. Section 5 of the Contributory Negligence Act, R.S.B.C. 1948 c. 68 (now R.S.B.C. 1960, c. 74) then read, in respect of the matters with which we are here concerned, the same as it does today. The pertinent portion reads: -“5. Where damage or loss has been caused by the fault of two or more persons the Court shall determine the degree in which each person was at fault, and.... where two or more persons are found at fault they are jointly and severally liable to the person suffering the damage or loss, but as between themselves, in the absence of any contract express or implied, they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.” 8. The Karnataka High Court Full Bench in the case of Karnataka State Road Transport Corporation vs. Arun again reiterated this position and question whether the claimants is liable to implead both joint tortfeasors, the Court held that it is not necessary to do so. “10: The question as to whether claimant is liable to implead both joint tortfeasors where he has suffered injury due to composite negligence of two vehicles had come up for consideration of this Court in A. Shivarudrappa vs. General Manager, Mysore Road Trans. Corpn., 1973 ACJ 302 (Mysore) State Road Transport Corporation only and driver, owner and insurer were not impleaded. The Tribunal held that there was no negligence on the part of the driver of bus and driver and owner of the lorry were not parties to the petition and hence, the claimant was not entitled to compensation quantified at Rs. 2,000 in the said case. In appeal by claimant, a Division Bench of this Court reversed the order of the learned Tribunal by holding that the accident occurred due to negligent driving of both the vehicles and it was a case of composite negligence and liability of tortfeasors was joint and several and hence, notwithstanding non-impleading of driver and owner of lorry, the claimant was entitled to full compensation quantified by the Tribunal. Same view has been taken by Division Bench of Gujarat High Court in Hiraben Bhaga vs. Gujarat State Road Trans. Same view has been taken by Division Bench of Gujarat High Court in Hiraben Bhaga vs. Gujarat State Road Trans. Corpn., 1982 ACJ (Supp) 414 (Gujarat), on similar facts and it is observed as follows: -“(4) The second error which the Tribunal committed is of deducting 50 per cent for the contributory negligence of the jeep driver which he assessed at 50 per cent, that is to say to an equal extent. It passes ones understanding as to how could a passengers compensation be deducted on account of the contributory negligence of the driver of a vehicle. It is entirely the choice of the claimants whether to implead both the joint tortfeasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of one of the joint tortfeasors, if they fail to implead him as one of the opponents, in their claim petition. It would be for the impleaded joint tortfeasors to take proceedings to get the other joint tortfeasors impleaded in the claim petition, or for that matter such an impleaded joint tortfeasor may select to sue the other one after the decree or award is given and the other joint tortfeasor is held liable therein.” The above view has been reiterated by Division Bench decision of Delhi High Court in Om Wati (Since Deceased) through L.Rs. v. Mohd. Din, 2002 ACJ 868 (Delhi). 11. In view of the aforesaid reasoning and decisions of Supreme Court, we have no hesitation to hold that where a claim petition is filed by the injured or the legal representatives of the deceased due to injury or death arising out of use of motor vehicles due to composite negligence of drivers of the two vehicles, the claimant can recover compensation from any one of the joint tortfeasors and the just compensation to which he is entitled cannot be reduced for non-impleading of the other joint tortfeasors and, therefore, the decision of the Full Bench in Ganeshs case, 2000 ACJ 1463 (Karnataka), in this behalf does not require any reconsideration. 9. 9. In view of the aforesaid position of law, it appears to be well -settled that qua the passengers of the vehicle, who have not actively contributed in any manner to the said accident and when the other vehicles namely the Truck is comprehensively insured, which fact is not in dispute, then the said Insurance Company is responsible to make good the entire amount awarded by the Tribunal qua those claimants because those claimants had right to proceed against any one of the tortfeasors. Therefore, as far as the order of the Tribunal reducing the payment of compensation to the extent of 50% for other four deceased is concerned, the same cannot be sustained and, therefore, it is directed that the Insurance Company -respondent No. 3, who gave comprehensive insurance cover to the truck, will pay the entire amount of compensation for the other four deceased. 10. Shri R.K. Mehta, learned Counsel for the Insurance Company supported by Shri M.L. Khatri learned Counsel for the owner submitted that the contention as raised in the present appeal that qua the passengers of Jeep, it was a case of composite negligence and, therefore, the Insurance Company of the truck should make good the award to the extent of 100%, was not raised before the Tribunal and, therefore, such objection cannot be raised in the present appeal. 11. I do not find any force in this objection because firstly ground (f) raised in the memo of appeal raises this contention and secondly the Tribunal while refusing the payment of compensation to 50% on the ground of contributory negligence, was very well aware of the position of passengers, therefore, the question of contributory negligence or composite negligence was inherent and the same cannot be separated and as such a contention arising out of the order of the Tribunal can very well be raised in the present appeal and, therefore, the said objection is held to be a mere technical objection and is over-ruled. 12. As far as quantum of compensation is concerned, the same also appears to be decided on relevant material, facts and circumstances by the Tribunal and is just and proper and does not call for any interference. Therefore, as far as Appeal Nos. 185/1999 and 1780/2004 are concerned, the same are dismissed. The remaining four appeal Nos. 12. As far as quantum of compensation is concerned, the same also appears to be decided on relevant material, facts and circumstances by the Tribunal and is just and proper and does not call for any interference. Therefore, as far as Appeal Nos. 185/1999 and 1780/2004 are concerned, the same are dismissed. The remaining four appeal Nos. 184/1999, 187/1999, 188/1999 and 186/1999 are disposed of with the modification that instead of 50%, the claimants shall be paid to the extent of 100% of the amount awarded by the Tribunal by the respondent No. 3 - the Insurance Company. 13. With the aforesaid observations and directions, the appeals are disposed of .