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Rajasthan High Court · body

2009 DIGILAW 1727 (RAJ)

Daya Bhai v. Gopal

2009-07-30

VINEET KOTHARI

body2009
Hon'ble KOTHARI, J.—These appeals have been filed by claimants under Section 173 of the Motor Vehicle Act, 1988 aggrieved by the impugned award of the MACT, Rajsamand dated 31.8.1996. 2. Briefly stated, the claims arose out of the accident which took place on 10.12.1988 while the passengers claimants were travelling in a Matador No. GQO-78 coming from Agra to Rajsamand near village Piparda when it met with an head-on collision with a truck No. RSE-7677 coming from Nathdwara side. Injured passengers of the said Matador were Dinesh, Geeta, Daya Bhai, Sunil Bhai, Nilesh and Smt. Nasu Ben and three persons namely Bhupendra Bhai, Sanjay Bhai and Ranchor Bhai @ Suman Bhai died on account of said head on collision. 3. The claimants filed the claim petitions in MACT, Rajsamand impleading only owner, driver and insurer (Oriental Insurance Company) of the said truck as respondents and the learned Tribunal decided the issue relating to amount of compensation while deciding issue No.2 against the claimants. Issue No. 2 was as to whether the accident had occurred on account of rash and negligent driving of truck No. RSE 7677. The learned Tribunal found that the said accident occurred on account of rash and negligent driving of the Matador only and, therefore, owner, driver and insurer of the truck were not held liable to pay any compensation. Even though owner and driver of the truck were preceded ex-parte and insurance company also did not lead any evidence before the learned Tribunal, yet from the perusal of the site plan only, the Tribunal came to the conclusion that negligence was only that of driver of the Matador in which injured and deceased persons travelling. Thus, the learned Tribunal though determined the quantum of com-pensation for the death and injuries, ultimately rejected the claim petitions. 4. Learned counsel for the appellant-claimants at the outset submitted that claimants are not pressing their claims for enhancement of the compensation in the present appeals and are challenging only the finding of learned Tribunal with respect to issue No. 2 not finding the driver of the truck guilty or negligent and thus rejecting the claim petitions. 5. Learned counsel for the appellants Mr. Pradeep Shah and Mr. 5. Learned counsel for the appellants Mr. Pradeep Shah and Mr. Sabir Khan submitted that though upon FIR, after investigation, police had filed challan against the driver of the truck and no evidence was led by the owner, driver or insurer of the offending vehicle truck, yet the learned Tribunal recorded its finding against the driver of the Matador and exonerated the owner, driver and insurer of the said truck. They submitted that the findings are absolutely perverse and even from the perusal of the site plan in question, it is clear that the truck was being driven rashly and negligently and moreover injured persons- the eye witnesses in the case had clearly deposed before the learned Tribunal establishing the rash and negligent driving of the driver of the truck. They further submitted that in any case the passengers travelling in the said Matador were not at fault and on account of composite negligence of both the drivers, the claimants are entitled to compensation under the Act and they have an option to proceed against either of the tort-feasors and their claims could not have been rejected by the learned Tribunal. They relied upon the following decisions in support of their submissions: (i) T.O. Anthony vs. Karvarnan & Ors. (2008) 3 SCC 748 . (ii) A.P.S.R.T.C. & Anr. vs. K. Hemlatha & Ors. (2008) 4 RLW 3453 (SC) (iii) Thokchom Ongbi Sangeeta & Anr. vs. Oriental Insurance Co. Ltd. & Ors. ( 2008 ACJ 6 ) (iv) Lalit vs. Abdul Rashid & Ors. ( 2007 ACJ 2771 (M.P.) 6. On the said opposite, Mr. U.C.S. Singhvi, learned counsel appearing for the Oriental Insurance Company submitted that from the site map and findings of learned Tribunal in para No. 8 of the impugned award, it was clear that the driver of the Matador was solely responsible and negligent and on account of his negligence since the accident had taken place, therefore, the insurer of the other vehicle namely truck has rightly been exonerated by the learned Tribunal and thus the claim petitions have rightly been rejected by the learned Tribunal. He, therefore, prayed for dismissal of the appeals and relied upon the decision of Orissa High Court in case of The Motor Owner's Insurance Company Ltd. vs. Smt. Sharda Thackar & Ors. - 1974 ACJ 239. 7. He, therefore, prayed for dismissal of the appeals and relied upon the decision of Orissa High Court in case of The Motor Owner's Insurance Company Ltd. vs. Smt. Sharda Thackar & Ors. - 1974 ACJ 239. 7. I have heard learned counsels at length and given my thoughtful consideration to the facts of the case, impugned award and record of the case. 8. The difference between composite and contributory negligence has been lucidly explained in a recent decision of Apex Court in the case of T.O. Anthony vs. Karvarnan & Ors. (supra) and it is considered appropriate to reproduce para No. 6 and 7 of the said judgment hereunder:- "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or person, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore, where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 9. Referring and relying upon the aforesaid decision, another bench of Apex Court in A.P.S.R.T.C. & Anr. vs. K. Hemalatha & Ors. (supra) held that to determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving the vehicle negligently and rashly and in case both were so doing, who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. Para 7 of the said judgment is reproduced hereunder to explain the concept of contributory negligence:- "(7) To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiffs fault was one of the cases of the damages and once that condition is fulfilled the damages have to be apportioned according to the appropriate share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of other being careless." 10. In Lalit vs. Abdul Rashid & Ors. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of other being careless." 10. In Lalit vs. Abdul Rashid & Ors. (supra) relied upon by the learned counsel for the appellants, the learned Single Judge relying upon the Full Bench decision of Madhya Pradesh High Court in Sushila Bhadoriya vs. M.P.S.R.T.C. - 2005 ACJ 831 and reproducing para 25 of the said full bench judgment held in para No. 11 that where no such evidence is led by producing the drivers of both the vehicles, the claimants can proceed against any of the tortfeasors and the Tribunal had rightly fixed the liability for payment of compensation jointly on all the tort-feasors. The said relevant portion of the judgment from para No. 10 and 11 is reproduced hereunder:- "10. ...The relevant findings are as under:- "(25) When injury is caused as a result of negligence of two joint tortfeasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the court to distinguish the act of each joint tortfeasor, liability can be fastened on both the tortfeasors jointly and in case only one of the joint tortfeasors is impleaded as party, then entire liability can be fastened upon one of the joint tortfeasors. If both the joint tortfeasors are before the court and there is sufficient evidence regarding the act of each tortfeasor and it is possible for the court to apportion the claim considering the exact nature of negligence by both the joint tortfeasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tortfesasors. In such cases, joint tortfeasors will be jointly and severally labile to pay the compensation." 11. But, in the present case from the record it is clear that both the drivers have not been examined before the tribunal. Respondent No. 5 has also not examined any of its officers with regard to its claim that up to what extent the driver of another vehicle was responsible for the accident, neither it has summoned the driver of the vehicle. Respondent No. 5 has also not examined any of its officers with regard to its claim that up to what extent the driver of another vehicle was responsible for the accident, neither it has summoned the driver of the vehicle. In such circumstances when there is no evidence on record, in my opinion, the Tribunal has rightly held that liability for payment of compensation would be jointly of all the tortfeasors." 11. On the other hand the judgment of Orissa High Court in case of The Motor Owner's Insurance Company Ltd. vs. Smt. Sharda Thackar & Ors. relied upon by learned counsel Mr. U.C.S. Singhvi is distinguishable. In that case the insurer and the driver of the offending truck was exonerated because a young boy of 11 years riding a bicycle was run over by right side rear wheel of the said truck and the court held that looking into the site map and the driver of the truck having cleared the traffic in his visibility could not be held liable if the young boy riding the bicycle came under the rear wheel of the said truck and this the driver and insurer were exonerated on those facts. The case here is clearly different. 12. The Coordinate Bench of this Court in case of Karan Singh & Anr. vs. Paramjeet Singh & Ors. - 2007 ACJ 2257 held in a case of collision between the truck and jeep coming from opposite direction and a passenger in jeep having sustained fatal injuries, that where there was no rebuttal evidence on behalf of owner or driver of the truck and no other witness appeared in rebuttal evidence, the Tribunal was justified in allowing the claim on the basis of FIR Charge Sheet against the truck driver, site plan and site inspection note. 13. In the present case, from the perusal of the FIR and site plan prepared by the police on the spot, it appears that after the head-on collision at point 'A' on the road, the truck in question has dragged the Matador for about 50 ft. Though the width of the road is 36 ft. but on account of head-on collision between these two vehicles, in the opinion of this Court, it is a case falling within the definition and concept of composite negligence where the both the drivers of vehicles in question could be held to be negligent. Though the width of the road is 36 ft. but on account of head-on collision between these two vehicles, in the opinion of this Court, it is a case falling within the definition and concept of composite negligence where the both the drivers of vehicles in question could be held to be negligent. Learned Tribunal appears to have fallen into error in holding that the driver of the Matador was solely negligent and responsible for the said accident in question. The finding of the Tribunal on issue No. 2, even though neither the owner or the driver of the truck produced any evidence in rebuttal and they were proceded ex-parte nor the insurer led any evidence before the Tribunal, cannot be sustained. 14. On the other hand, the claimants had produced FIR, site plan and other relevant document including the statement of eye witnesses, who have clearly deposed before the Tribunal that the accident took place on account of rash and negligent driving of the truck driver, this Court is of the opinion that the claim petitions of the claimants could not be rejected and owner, driver and insurer of the said truck cannot be exonerated. 15. Since it is well settled that in case of composite negligence as distinguished from contributory negligence, the claimants have the option to proceed against any of the tortfeasors and their liability is joint and several, the mere fact that the injured and representatives of deceased passengers does not implead the owner and driver of the Matador does not defeat the claim of the claimants. Therefore, in view of the above clear legal position and findings of this Court, the claim petitions as well as present appeals deserve to be allowed and same are accordingly allowed. 16. Since enhancement of compensation has not been pressed and the amount of compensation has already been determined by the learned Tribunal in the impugned award, that part of the impugned award determining quantum of compensation is sustained. 17. Consequently, the appeals of claimants are allowed. The claimants shall be paid compensation by the Insurance Company as determined by the learned Tribunal with interest in accordance with the directions of learned Tribunal within a period of three months from today. 17. Consequently, the appeals of claimants are allowed. The claimants shall be paid compensation by the Insurance Company as determined by the learned Tribunal with interest in accordance with the directions of learned Tribunal within a period of three months from today. Since the Tribunal has awarded only fixed sum of interest upto the date of Tribunal's award, the claimants shall be further entitled to simple interest @ 9% p.a. from the date of impugned award i.e. 31.8.1996 till the date of payment to the claimants. No order as to costs.