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2006 DIGILAW 1100 (AP)

Oriental Insurance Co. v. N. Kousalya

2006-09-12

L.NARASIMHA REDDY

body2006
J U D G M E N T Fourth respondent in O.P.No. 1974 of 2001 on the file of the Motor Accident Claims Tribunal-cum-XIV Additional Chief Judge, City Civil Court, Hyderabad, preferred this appeal under Section 173 of the Motor Vehicles Act, against the order dated 8-7-2004 passed in the said O.P. 2. Respondents 1 and 2 are the wife and daughter respectively of late N.Ashok. They filed the O.P. stating that N.Ashok and P.Srinivas were traveling in an Auto Trolley, bearing No. AP9T 7348, owned by the third respondent and insured with the fourth respondent, on 9-7-1994 and at about 11-20 PM, one K.Mutyalu, Driver of the vehicle, dashed against the Stationery Lorry, bearing No.AAT 6997, owned by the fifth respondent herein and insured with the appellant. All the three persons are said to have died, on account of the injuries. According to them, the accident occurred on account of rash and negligent driving of the Trolley and reckless parking of the lorry. by its driver. They claimed a sum of Rs.1,50,000/- as compensation. 3. The owner of the Trolley, the third respondent herein, remained exparte. The insurers of the two vehicles and the owner of the Lorry filed counter affidavits in the O.P. The insurer of the Trolley pleaded that it is not liable to pay compensation because the deceased was traveling as a passenger in a goods vehicle. The owner of the Lorry sought to avoid his liability on the ground that the vehicle was insured with the appellant herein. The appellant, on the other hand, alleged that respondents 1 and 2 are not the legal heirs of the deceased and that it is also not liable to pay compensation, since the Lorry was a goods vehicle. 4. Through the order under appeal, the Tribunal held that the owners of the Trolley and Lorry and the insurer of the Lorry i.e., the appellant herein are liable to pay compensation, which was determined at Rs.1,50,000/-. 5. Learned counsel for the appellant submits that the Tribunal did not apportion the liability of the drivers of the trolley and lorry and dealt with the question in a vague manner, though it was held that the accident occurred on account of the negligence of both of them. 5. Learned counsel for the appellant submits that the Tribunal did not apportion the liability of the drivers of the trolley and lorry and dealt with the question in a vague manner, though it was held that the accident occurred on account of the negligence of both of them. He further contends that once the insurer of the trolley was absolved of the liability on the ground that the deceased was the passenger of a goods vehicle, the same reasoning applies vis-a-vis to the appellant also. 6. Learned counsel for the fourth respondent, the insurer of the Trolley, submits that the deceased was traveling in the Auto Trolley insured with it, whereas, he was a third party, vis-a-vis the lorry, insured with the appellant and that the Tribunal had appreciated the matter in proper perspective. 7. Learned counsel for respondents 1 and 2, on the other hand, submits that the Drivers of both the vehicles are guilty of composite negligence and it was not necessary for the Tribunal, to apportion the liability between them. He contends that the appellant cannot absolve itself from the liability to pay the compensation, since the deceased was not a passenger in the vehicle insured with it. 8. From the submissions made by the learned counsel for the parties, the following questions arise for consideration. (a) Whether the Tribunal was under obligation to apportion the liability of the Drivers of the two vehicles? (b) Whether the appellant can be absolved of the liability to pay the compensation on the ground that the subject matter of insurance was a goods vehicle? 9. As regards the first question, it needs to be seen that the death of N.Ashok occurred, when the Auto Trolley, in which he was traveling, dashed against a parked Lorry. The negligence on the part of the Driver of the Trolley was evident, on the face of it. It was specifically pleaded by respondents 1 and 2 that the Lorry was parked in a negligent manner and that the same had contributed to the occurrence of the accident. F.I.R., marked as Ex.A.1, was registered against the driver of the trolley by the Bowenpally P.S., and a charge sheet, marked as Ex.A.4, was filed therein. The contents of the F.I.R. and the charge sheet remained unrebutted. F.I.R., marked as Ex.A.1, was registered against the driver of the trolley by the Bowenpally P.S., and a charge sheet, marked as Ex.A.4, was filed therein. The contents of the F.I.R. and the charge sheet remained unrebutted. It was further stated by respondents 1 and 2 that the Driver of the Lorry was also prosecuted for parking the Lorry in a careless manner and that he was sentenced to pay fine. It is, therefore, evident that the drivers of the trolley and lorry have contributed for the occurrence of the accident. 10. In matters of this nature, it is difficult to apportion the liability of the respective drivers, with mathematical precision. The matter gets further complicated, where the respective drivers do not choose to depose before the Court, narrating the circumstances under which the accident occurred. The only course open to the Court in such cases would be to treat both of them as ‘Joint Tortfeasers’. The illustration furnished by Winfield in his ‘Treatise on Tort’ squarely fits into the facts and can be circumstances of the present case. The manner in which a Joint Tortfeaser can be attributed is illustrated as under. “.........The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous. Thus if D1 driving too fast in icy conditions causes his lorry to “jackknife” across the motorway and D2 also driving too fast, later comes along and, trying to avoid the obstruction, runs down P, assisting at the scene, both D(1) and D(2) are liable for P’s injuries. 4(3)....” 11. The concept of Joint Tortfeasors is also known through another expression ‘Composite Negligence’. The purport of this is that the injury or wrong that had occurred to the victim, is the result of the negligence on the part of two or more individuals. While in some cases, it may be possible to deteimine the extent of contribution of the respective persons for such wrong, in majority of the cases, it would be difficult to reach a just and proper conclusion in this regard. In the case of Joint Tortfeasors, the liability of the wrong doer would be joint and several and the discharge by one would enure to the benefit of the other. 12. In the case of Joint Tortfeasors, the liability of the wrong doer would be joint and several and the discharge by one would enure to the benefit of the other. 12. In SYED IBRAHIM V. UNION OF INDIA(4), this Court held that where an accident occurred on account of collision between two vehicles, the drivers of both the vehicles can be held guilty of composite negligence and that it is not necessary that the extents of the liability must be apportioned. Therefore, the first issue deserves to be answered against the appellant. 13. As for the second question, the appellant strongly urges that being the insurer of a goods vehicle, the appellant is also not liable to pay compensation. It relies upon the reasoning of the Tribunal itself, which absolved the insurer of the trolley from the liability, on the ground that it was a goods vehicle. 14. It is true that in NEW INDIA INSURANCE COMPANY LIMITED V. ASHA RANI (5) and NATIONAL INSURANCE COMPANY LIMITED V. BALJIT KAUR (6), it was held that the insurer of a goods vehicle is not under obligation to pay the compensation for the injuries or death of a passenger, in such vehicle. The view taken by the Supreme Court in NEW INDIA ASSURANCE COMPANY LIMITED V. SATPAL SINGH(7) was held to be no longer a good law. For applying the said principle, it must be found that the injured or the deceased in an accident was a passenger in a goods vehicle. It is not in dispute that N.Ashok was traveling in a goods vehicle i.e., auto trolley and he died in the accident. Therefore, the Tribunal has correctly absolved the insurer of the trolley from the obligation to pay the compensation. 15. It is no doubt true that the one insured with the appellant is also a goods vehicle. However, there exists a substantial difference. The deceased was not a passenger in that vehicle. He was a third party, vis-a-vis that vehicle. Once it has emerged that the deceased was not a passenger in the goods vehicle insured with the appellant, the principle laid down in Asha Rani’s case (5 supra) cannot be applied to the facts of this case, in the context of fastening the liability against the appellant. 16. The Tribunal had analysed the facts in a proper and appropriate manner and applied the correct principle of law. 16. The Tribunal had analysed the facts in a proper and appropriate manner and applied the correct principle of law. This Court does not find any merits warranting interference with the order under appeal. 17. The Civil Miscellaneous Appeal is accordingly dismissed. There shall be no order as to costs. --X—