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2010 DIGILAW 1272 (RAJ)

Pukhraj Jain v. Birbal Singh

2010-07-22

MAHESH BHAGWATI

body2010
Hon'ble BHAGWATI, J.—Motor Accident Claims Tribunal, Ajmer passed an award of Rs. 1,11,500/- in favour of the appellant and held the appellant entitled to claim only 40% of the entire amount under the award from the respondents Nos. 1 to 3 and rest of 60% amount under the award from respondents Nos. 4 and 5. Since the appellant-claimant did not seek any relief against the respondents Nos. 4 and 5, his claim against them was dismissed. Being aggrieved with the amount of compensation under the award, the appellant prayed to modify the award to the extent of Rs. 5,65,000/- with interest @ 18% per annum from the date of petitioner till its realization. 2. Contextual facts of the case depict that on 7th April, 1993 at about 2:30 pm, Pukhraj and Uttam Chand were going on Scooter No. RJ-01-M-9977 from Ajmer to Kishangarh. Uttam Chand was riding the scooter and the appellant Pukhraj was sitting on the rear seat thereof. No sooner did the scooter reach at Kishangarh by-pass Ajmer trio, one Contesa Car bearing Registration No. GJ-1 K-1229 being driven by its driver rashly and negligently, suddenly emerged from the opposite direction and hit the scooter resulting into injuries on their persons. This accident occurred on account of rash and negligent driving of the driver of the offending Car. Both the injured Pukhraj and Uttam Chand separately filed the claim petitions No. 145/1993 and 152/1993, which stood adjudicated by the common impugned order. 3. Heard learned counsel for the parties and carefully perused the impugned award including the relevant material on record. 4. Learned counsel for the appellant canvassed that the learned Tribunal observed that this accident took place on account of negligent driving of both the Scooter driver and Truck driver, hence, the appellant Pukhraj was entitled to claim only 40% of the total amount of compensation under the award from the respondents Nos. 1 to 3. Learned counsel further canvassed that this finding of the learned Tribunal is totally contrary to law and the intelligible and distinct pronouncements of the Hon'ble Apex Court. It has been repeatedly held by the Hon'ble Apex Court that in a case of composite negligence, 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. It has been repeatedly held by the Hon'ble Apex Court that in a case of composite negligence, 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. He has cited the case of T.O. Anthony vs. Karvarnan and others reported in (2008) 2 SCC 748 in support thereof. 5. E Converso, learned counsel for the Insurance Company defendant the impugned award and stated the same to be just and proper and further submitted that it did not warrant any intervention. 6. In the case of T.O. Anthony (supra), the Hon'ble Apex Court held thus: "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 injury 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." 7. The Hon'ble Apex Court, in this judgment, defined the terms "composite negligence" and "contributory negligence" and explained the distinction therein. The Hon'ble Apex Court held that in an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicles, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 8. 8. In view of the above explanation, the instant case is found to be a case of composite negligence, wherein the appellant-claimant was a pillion rider. The Scooter was being driven by Uttam Chand and in the light of the aforesaid pronouncement of the Hon'ble Apex Court, it was the choice of the injured - claimant to proceed against all or any of them. Learned Tribunal has wrongly held that he could claim only 40% of the amount under the award from the respondents Nos. 1 to 3. Learned Tribunal further erringly held that 60% of the amount of compensation under the award could have been claimed from the respondents Nos. 4 and 5, but since, the relief was not sought against them, the claim stood dismissed against them accordingly. In the light of the above judgment of Hon'ble Apex Court, the injured-appellant has right to claim entire amount of compensation from the respondents Nos. 1 to 3. Hence, the finding of the learned Tribunal to this effect deserves to be set aside, which stands set aside accordingly. 9. So far as the question of enhancement of compensation under the award is concerned, learned counsel for the appellant failed to convince me to take a contrary view to that of the learned Tribunal. Hence, the prayer with regard to enhancement of compensation is disallowed. 10. For the reasons stated above, the appeal is partly allowed. The appellant- claimant is held entitled to claim the entire amount of compensation under the award i.e. Rs. 1,11,500/- from the respondents Nos. 1 to 3, jointly and severally .Rest of the terms under the award shall remain unchanged. 11. The impugned award passed in claim petition No. 114/1998 (145/1993) stands modified as indicated hereinabove.