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2005 DIGILAW 600 (MP)

NEW INDIA ASSURANCE CO. LTD v. ARUN KUMAR

2005-05-10

A.M.SAPRE, S.K.SETH

body2005
S. K. SETH, J. ( 1 ) THIS order shall also govern the disposal of following appeals, viz. , C. R. No. 1220 of 1999 and M. A. Nos. 90, 92, 100 to 109 of 2000 details of which are given in Annexure 'a' appended to this order, (omitted) as all of them arise out of the common award whereby various claim petitions were disposed of by the learned First Additional Motor Accidents claims Tribunal, Barwani. ( 2 ) VARIOUS petitions arose out of a road accident between two motor vehicles, viz. , a school bus bearing registration No. MKT 7094 and truck bearing registration No. DL 1-G 8664. The accident took place on 5. 1. 1994 on A. B. Road near village Segwal phata. It is not disputed before us that at the time of accident, the truck which was owned by Kuldeep Singh, respondent No. 3 herein, was being driven by Gurdayal singh, respondent No. 4 herein. The school bus was being driven by respondent No. 5 herein, Bhuwaniram and it was owned by kusum Patidar. On account of the aforesaid accident, 5 persons lost their lives and others sustained personal injuries. In all 14 claim cases were filed and the learned claims Tribunal after recording the evidence found that both drivers, of the truck as well as the school bus, were responsible for causing accident. The learned Tribunal awarded compensation to the claimants. ( 3 ) PRESENT bunch of appeals have been filed by the insurance company and the only question which has been raised at the time of hearing of these appeals is with regard to apportionment of liability between the two drivers of the offending vehicles. According to Mr. Dandwate, learned counsel for appellant, it was case of head-on collision which took place in the middle of the road and, therefore, both drivers should be held equally responsible for causing the accident. At the time of arguments, Mr. Dandwate candidly submitted that it is not a case of 'contributory negligence' but a 'composite negligence' of both drivers. So far as claimants are concerned, he submitted that even though appellant insurance company might have or may have to pay the entire amount of compensation to the victims, but in view of the apportionment, appellant insurance company may be able to recover the amount from the owner/driver of the school bus to the extent of apportionment. So far as claimants are concerned, he submitted that even though appellant insurance company might have or may have to pay the entire amount of compensation to the victims, but in view of the apportionment, appellant insurance company may be able to recover the amount from the owner/driver of the school bus to the extent of apportionment. ( 4 ) ON the other hand, learned counsel appearing for the owner and the driver of the school bus submitted that the accident was caused due to sole negligence of the driver of the truck insured with the appellant, therefore, the owner and the driver of the school bus are not liable to pay any compensation and there is no question of apportionment of the liability between the two drivers. ( 5 ) AFTER having heard the learned counsel for the parties and going through the material available on the record, in the considered opinion of this court, learned claims Tribunal has rightly held that the accident occurred due to composite negligence of both the drivers. So far as claimants are concerned, it was rightly held that it is not a case of contributory negligence. The only question is, whether there can be an apportionment of liability between the two drivers. In Division Bench decision in manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1 (MP), it was held in the negative. The same view has also been reiterated recently by Full Bench of this court in a decision in Sushila Bhadoriya v. Madhya pradesh State Road Trans. Corpn. , 2005 acj 831 (MP ). The Full Bench having a panoramic view of the pronouncements of the various High Courts, has categorically held that apportionment is possible only in the case of 'contributory negligence' and in case of a 'composite negligence', there cannot be apportionment of liability between the two joint tortfeasors. It was observed by the Full Bench as under:" (24) Next question involved in the case is whether there can be apportionment? in the cases of joint tortfeasors, it is difficult to determine the extent of liability of each tortfeasor and it will not be possible to apportion the ratio of negligence of the joint tortfeasors. It was observed by the Full Bench as under:" (24) Next question involved in the case is whether there can be apportionment? in the cases of joint tortfeasors, it is difficult to determine the extent of liability of each tortfeasor and it will not be possible to apportion the ratio of negligence of the joint tortfeasors. In the case of composite negligence or in the cases of joint tortfeasors arising out of the use of motor vehicle, award can be passed against both or any one of them for the entire amount because the injured is not in a position to quantify or qualify the apportionment of each vehicle. Since he has suffered injury on account of use of motor vehicles, both the motor vehicles will be jointly and severally liable to pay the compensation. It is the choice of the claimant to sue both or may claim compensation from one of the joint tortfeasors as their liability is joint and several. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two, as it is difficult to determine the apportionment in the absence of the drivers of the vehicles appearing in the witness-box. Therefore, there cannot be any apportionment of the claim between the joint tortfeasors. " ( 6 ) IN view of the authoritative pronouncement of the Full Bench decision in the case of Sushila Bhadoriya, 2005 ACJ 831 (MP), we have no hesitation to hold that there is no merit and substance in these appeals and the same deserve to be dismissed. Accordingly, all the appeals are hereby dismissed. However, there shall be no order as to costs. Let a copy of the order be retained in the file of each appeal. Appeals dismissed. .