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2010 DIGILAW 2788 (ALL)

Ram Sunder v. Vasdev and Others

2010-09-13

ANIL KUMAR

body2010
Hon’ble Anil Kumar, J.—Heard Sri S.C. Kashish, learned counsel for the appellant, Sri S.P. Maurya, and Sri S.C. Srivastava, Advocate holding brief of Sri Waqar Hashim on behalf of respondent Nos. 1 and 5.2. By means of the present appeal, judgment and award dated 10.09.1998 passed by Special/Additional District Judge/MACT, Pratapgarh in MACT No. 57 of 1991 Vasdeo v. Ram Bahadur and others is under challenge.3. Brief facts of the present case are that on 26.06.1991 at about 02.30 p.m. one Smt. Rajpati, wife of Sri Vasdeo (claimant/respondent No. 1) along with one another woman of her village were sitting in the shop belonging to one Sri Raj Bahadur situated at Narahi Chauraha Post Nepatia Thana Sangramgarh, District Pratapgarh. A private bus having registration No. DLP 6422 coming from Babaganj and going through Salwan driven at high speed by the driver rashly and negligently when reached the Narahi Chauraha had collided with another bus having registration No. USZ 593 which was coming from Sangramgarh, as a result of which the bus No. DLP 6422 turned down. As a result of which Smt. Rajpati and Sri Raj Bahadur had died and another woman sitting along with deceased Smt. Rajpati sustained grievous injuries and was admitted to hospital.4. In view of the abovesaid facts, a claim petition was filed by the claimant Sri Vasdeo, husband of the deceased Smt. Rajpati under Section 166 of the Motor Vehicle Act for a compensation of Rs. 1,73,000/-, registered as MACP No. 57 of 1991. In the said claim petition Ram Sundar and Sri Ram were impleaded as respondent Nos. 1 and 2 who are the owner and driver of bus No. USZ 593 respectively. Sri Genda Lal and Sri Lal Bahadur sons of Sri Suraj Prasad were impleaded as respondent Nos. 3 and 6, the owners of bus No. DLP 6422 and one Sri Jang Bahadur impleaded as respondent No. 4 and the New India Insurance Company through its Senior Divisional Manager was impleaded as insurer by whom the bus in question was allegedly said to be insured.5. Further, in the claim petition filed by the claimant inter alia pleaded that the monthly income of deceased Smt. Rajpati was Rs. Further, in the claim petition filed by the claimant inter alia pleaded that the monthly income of deceased Smt. Rajpati was Rs. 800/- per month and at the time of accident she was about 34 years aged and the accident had occurred due to rash and negligent driving on the part of the driver of Bus No. DLP 6422 and Bus No. USZ 593. Written statement has been filed on behalf of Sri Ram Sunder, the owner of Bus No. USZ 593 inter alia denying therein that no accident had took place by his bus. However no written statement has been filed by Sri Ram/Respondent No. 2 who is the driver of bus No. USZ 593. Further a written statement has been filed on behalf of Sri Genda Lal and Sri Jang Bahadur, respondent Nos. 3 & 4 respectively inter alia stating therein that it is totally incorrect on the part of the claimant that the accident in question has taken place due to rash and negligent driving of bus No. DLP 6422 and there is no contribution of driver of the said bus in the accident in question. However no written statement has been filed by Lal Bahadur S/o Sri Suraj Prasad who is one of the co-owner of bus No. DLP 6422. New India Insurance Company had filed a written statement stating therein that the vehicles in question were insured with them at the time of accident and further no insurance policy has been produced/filed by the owner of the vehicle in order to prove the fact that the vehicles in question were covered by a valid policy at the time of accident, hence insurance company is not liable to pay any compensation.6. After the exchange of pleadings between the parties and material evidence as adduced by them in order to support their case, the Tribunal had framed four issues out of which the issue No. 1 relates to the effect that whether the accident has taken place due to rash and negligent driving of vehicle No. DLP 6422 and USZ 593, If the same has taken place then upto what extent the contributory negligence exist on their part and their liability to pay compensation accordingly.7. Issue No. 2 was framed by the Tribunal to the effect that whether at the time of the accident the vehicle in question was insured with the New India Insurance Company/respondent No. 5.8. Further, on the basis of the material on record the Tribunal had decided the issue No. 1 holding therein that the accident in question has taken place due to rash and negligent driving of vehicle No. DLP 6422 and USZ 593 and further held that as the bus No. USZ 593 has hit the bus No. DLP 6422 from back side, so the bus No. USZ 593 is liable to pay compensation amounting to 60% and vehicle No. DLP 6422 40 %. Tribunal had decided the issue No. 2 holding therein that at the time of accident the vehicles in question were not insured with the New India Insurance Company/respondent No. 5 as the owners of the vehicles have not been able to file the insurance policy and as well as they are not able to prove by any evidence that at the time of accident vehicles were insured with respondent No. 5. Accordingly, by means of the judgment and award dated 10.09.1998, the Tribunal has awarded a compensation of Rs. 65,000/- with 12% interest from the date of filing of the application of compensation by the claimant against respondent Nos. 1, 3 and 6 and it was further held that respondent No. 1 (Ram Sunder) owner of vehicle No. USZ 593 shall pay 40% of the compensation so awarded and remaining 60% will be paid by respondent Nos. 3 and 6, the owners of the vehicle No. DLP 6422. Aggrieved by the judgment and award dated 10.09.1998 passed by Motor Accident Claims Tribunal, the present appeal under Section 173 of the Motor Vehicle Act has been filed by Sri Ram Sunder, the owner of bus No. USZ 593.9. Sri S.C. Kashish, counsel for the appellant while assailing the impugned award which is under challenge has only submitted that the accident in question has not taken place due to rash and negligent driving of the driver of the vehicle No. USZ 593 and the same has taken place due to sole rash and negligent driving of bus No. DLP 6422, as such the Tribunal has wrongly held that 40% of the compensation awarded by means of the impugned award be paid by the appellant to the claimant. Hence the award in question being contrary to the facts to the case and liable to be set aside.10. Sri S.P. Maurya, learned counsel for the respondent has submitted that the judgment and award dated 10.09.1998 has been passed by the Tribunal after taking into consideration the facts and material documents on record, as such the same is perfectly valid and the present appeal filed by the appellant is liable to be dismissed.11. So far as Sri S.C. Srivastava, Advocate holding brief of Sri Waqar Hasim, learned on behalf of Insurance Company is concerned, he submitted that he has nothing to say in the matter in question as the vehicle in question was not insured with the Insurance Company at the time of accident and in this regard the submission was also made by the counsel for the appellant.12. I have heard counsel for the parties and perused the record.13. So far as the factual matrix of the case are concerned, it is not in dispute that Smt. Rajpati wife of claimant/Sri Vasdeo has died due to accident taken place between bus No. DLP 6422 and USZ 593 on 26.06.1991 while she was sitting in a shop along with another woman of her village owned by Sri Raj Bahadur situated at Narahi Chauraha Post Nepatia Thana Sangramgarh, District Pratapgarh. Further from the perusal of the judgment and award passed by the Tribunal and the material documents on record, I find that the Tribunal after going through the material on record had rightly decided the issue No. 1 that the accident in question has taken place due to rash and negligent driving of the driver of the bus in question and as the bus No. DLP 6422 has been hit from the back side by bus No. USZ 593. So the Tribunal has held that 60% compensation be paid by owner of the bus No. USZ 593 and 40% owner of bus No. DLP 6422.14. Learned counsel for the appellant is not able to point out any reason whatsoever that under what circumstances and reasons, the said finding of facts recorded by the Tribunal are perverse in nature and contrary to the facts of the case.15. Learned counsel for the appellant is not able to point out any reason whatsoever that under what circumstances and reasons, the said finding of facts recorded by the Tribunal are perverse in nature and contrary to the facts of the case.15. It is well settled proposition of law that if a finding of fact has been recorded by the Tribunal then this Court while exercising the appellate jurisdiction can set aside the same only when the same is contrary to the facts of the case and perverse in nature. The said two conditions do not exists in the present case, hence argument as advanced by the learned counsel for the petitioner has got no force. Further in the case of T.O. Anthony v. Karvarnan, 2008 (3) SCC 748 Hon’ble Apex Court has held as under:-“‘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 persons, 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”.The above view was further reiterated by the Apex Court Andhra Pradesh State Road Transport Corporation and others v. K. Hemlata and others, (2008) 6 SCC 767 and in the case of Sudhir Kumar Rana v. Surendra Singh and others, (2008) 12 SCC 436 .16. In view of the abovesaid authorities of the Apex Court, the position which comes out is that where a person is injured or died as a result of negligence on the part of two or more wrongdoers. In such a case each wrongdoer is jointly and severally liable to pay the entire compensation to the injured person or/heirs of the deceased has the choice. Further when the question comes into the picture as upto what extent the vehicle in question due to whose composite negligence the accident has taken place is liable to pay the compensation to the injured person/heirs of the deceased who had filed the claim petition, then the question which is to be determined is as to who contributed to the happening of the accident and it becomes relevant to ascertain that the accident which has taken place in respect to the same, upto what extent or degree they are negligent and responsible.17. In the present case as stated hereinabove, the Tribunal while passing the award under challenge, on the basis of the material evidence on record, has held that both the vehicles involved in the accident were rashly and negligently driven by their drivers respectively. However, the vehicle No. DLP 6422 was hit in the back side by vehicle No. USZ 593 and accordingly the liability of compensation of 60% and 40% of the compensation payable to the claimant was fixed on the owner of the vehicle No. USZ 593 and DLP 6422. The said finding recorded by the Tribunal is in conformity to the law as laid down by the Apex Court.18. No other point has been pressed or argued before me.19. For the foregoing reasons, I do not find any illegality or infirmity in the impugned award passed by the Tribunal which is under challenge in the present case. Accordingly, the same lacks merit and is dismissed. Further the office is directed that the statutory amount deposited by the appellant at the time of filing of the present appeal as per the statutory provision of Section 173 of the Motor Vehicle Act be remitted to the Tribunal concerned who shall proceed accordingly.(Appeal dismissed)_____________