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2011 DIGILAW 895 (GAU)

Oriental Insurance Co. Ltd. v. Md. Abdul Karim

2011-11-16

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (in short, 'MV Act'), against the award, dated 28.08.2007, passed, in MAC Case No. 916 of 2002, by the learned Member, Motor Accident Claims Tribunal, Silchar directing the present insurer-appellant to pay Rs. 22,000/-, as compensation, to the claimant-respondent No. 1 with interest @ 6% per annum from the date of filing of the claim application till realization of the said amount of compensation. I have heard Mr. B.C. Das, learned senior counsel, appearing for the appellant-insurer, and Mr. S.C. Kayal, learned counsel for the claimant-respondent No. 1. 2. While considering the present appeal, it needs to be noted that the claimant-respondent No. 1 made an application, under Section 166 of the M.V. Act, seeking compensation for injuries sustained by him, his case being, in brief, thus on 05.09.2002, the claimant boarded the Truck No. AS 25-C-1523, with cages of hens, at Digarkhal, for going to Meghalaya. He took his seat in the truck, which was being driven in a very rash and negligent manner. As a result of such rash driving, it met with an accident, at Umtra, in the State of Meghalaya, on the National High Way, inasmuch as it dashed against another truck bearing registration No. AS-01L/6267. As a result of the said accident, the claimant sustained grievous injuries and was shifted to hospital for treatment. The Truck No. AS 25-C-1523, being insured with the present appellant as insurer, the claimant-respondent No. 1 accordingly sought for an award of Rs. 2,10,000/- as compensation. 3. The present appellant, as insurer of Truck No. AS 25-C-1523, filed a petition, under Section 170 of the MV Act, seeking permission to contest the proceeding and, on the same being allowed, the appellant herein contested the claim proceeding by filing his written statement. 4. As far as the owners of the said two vehicles are concerned, none of them appeared in the claim proceeding and/or contested the same. In support of his case, the claimant examined himself as witness. Though the present appellant, as insurer, cross-examined PW1, no evidence was adduced by the insurer-appellant. The justification of the quantum of compensation of Rs. 22,000/-, awarded by the learned Tribunal, as against the claimant's prayer for compensation of Rs. 2,10,000/-, is not, in dispute, in the present appeal. 5. The said sum of Rs. Though the present appellant, as insurer, cross-examined PW1, no evidence was adduced by the insurer-appellant. The justification of the quantum of compensation of Rs. 22,000/-, awarded by the learned Tribunal, as against the claimant's prayer for compensation of Rs. 2,10,000/-, is not, in dispute, in the present appeal. 5. The said sum of Rs. 22,000/- has been awarded by the learned Tribunal assessing Rs. 7,000/- as expenses of the medical treatment and Rs. 15,000/- as compensation for the injuries sustained by the claimant. 6. What has been contended, in the present appeal by Mr. Das, learned senior counsel, is that in the present case, there were two vehicles involved in the accident, namely, Truck No. AS 25-C-1523 and Truck No. AS-01 L/6267 and, hence, the entire liability of making payment of compensation could not have been imposed on the present appellant alone as insurer of one of the vehicles involved in the said accident. 7. While considering the above submission of Mr. Das, it needs to be noted that the learned Tribunal has pointed out that the evidence on record shows that the offending truck, namely, AS 25-C-1523, dashed against other truck due to rash and negligent driving. The learned Tribunal has, however, pointed out that the claimant can claim compensation from the owner and insurer of any of the two vehicles. It is this proposition, which is under challenge in the present appeal. 8. Before I come to the merit of the present appeal, it may be noted that there are two kinds of negligence, which reduces the liability of the person, who is liable to make payment of compensation. Negligence can, therefore, be divided in two parts commonly known as composite negligence and contributory negligence. There is clear and definite distinction between the two, namely, composite negligence and contributory negligence. Composite negligence is one, where the injury is caused by the wrongful act of more than one wrong-doer. In such a case, the plaintiff is entitled to sue all or any of the wrong-doers. Composite negligence reflects the negligence on the part of two or more persons. Where a person sustains injury as a result of negligence on the part of the two or more wrong-doers, the injury is said to have been caused on account of composite negligence of the wrong-doers involved in such accident. 9. Composite negligence reflects the negligence on the part of two or more persons. Where a person sustains injury as a result of negligence on the part of the two or more wrong-doers, the injury is said to have been caused on account of composite negligence of the wrong-doers involved in such accident. 9. In a case of composite negligence, each wrong-doer is jointly and severally liable to the injured for payment of entire damages and the injured has the' choice of proceeding against all or any of them. In such a case, the injured need not establish, separately, the extent of responsibility of each of the wrong-doer in causing the accident. It is also not necessary for the Court to determine the extent of liability of each wrong-doer separately. The claimant, in a case of composite negligence, can proceed against any or all wrong-doers. 10. On the other hand, when a person suffers injury, partly due to his own negligence and partly due to negligence of some other person or persons, then, the negligence, on the part of the injured, which contributes to the accident, is commonly referred to as the contributory negligence. When an injured has contributed to the causing of the injury in any manner, the claim for compensation has to be first determined, but compensation recoverable by the insurer has to be reduced proportionate to the contributory negligent. Hence, 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 was himself negligent, then, it becomes necessary to determine 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 share of contributory negligence. 11. Hence, when an injured is himself partly liable for the accident, the principle, governing the concept of composite negligence, will not apply. Nor can there be an automatic inference that the negligence was 50:50. In a case of, however, contributory negligence, it is the duty of the Tribunal to determine the extent of contribution of the injured himself. 11. Hence, when an injured is himself partly liable for the accident, the principle, governing the concept of composite negligence, will not apply. Nor can there be an automatic inference that the negligence was 50:50. In a case of, however, contributory negligence, it is the duty of the Tribunal to determine the extent of contribution of the injured himself. Reference, in this regard, may be made to the cases of Sudhir Kumar Rana v. Surinder Singh and others, reported in (2008) 12 SCC 436 , T.O. Anthony v. Karvarnan, reported in (2008) 3 SCC 748 , and Andhra Pradesh State Road Transport Corporation and another v. K. Hemlatha and others, reported in (2008) 6 SCC 767 . 12. In the present case, since there is no evidence to show that the claimant had, in any way, contributed to the accident, the present one could not have to been described as a case of contributory negligence. As there was a collision between the said two vehicles, the present one is a case of composite negligence. In a case of composite negligence, the claimant is not required to establish the extent of responsibility of each wrong-doer separately nor is it for the Court to determine the extent of liability of each wrong-doer separately. It is open to the injured to proceed against all or any of the wrong-doers. 13. The question, which, however, arises, in the present case, is: when a claimant chooses to proceed against all those, who were involved in causing the accident, whether it would still remain open for the Tribunal to make one of such persons liable to pay compensation to the injured? 14. In the present case, there were, admittedly, two vehicles involved in the accident. There was definite indication, in the impugned award, that the drivers of the two vehicles had caused the accident. Hence, the owners of both the vehicles were impleaded as respondents. The learned Tribunal has, however, observed in its order, "the claimant can claim compensation from the owner, driver and insurer of any of the vehicles". It needs to be carefully noted, in this regard, that there can be no dispute as regards correctness of the observations so made, as a position of law, by the learned Tribunal. The learned Tribunal has, however, observed in its order, "the claimant can claim compensation from the owner, driver and insurer of any of the vehicles". It needs to be carefully noted, in this regard, that there can be no dispute as regards correctness of the observations so made, as a position of law, by the learned Tribunal. The present case is not, however, a case, where the present claimant-respondent No. 1 had decided to proceed against the present insurer-appellant alone to the exclusion of the owner and insurer of the other vehicle, namely, truck No. AS-01-L/6267 inasmuch as the claimant, in his claim petition, did not only implead the owner and insurer of the truck No. AS 25-C-1523, but also impleaded the owner of the truck No. AS-01-L/6267. 15. When, therefore, the claimant himself, as injured, has decided to proceed against both the vehicles involved in the accident, it could not have held, and has been erroneously held, by the learned Tribunal that the claimant can realize compensation from any or both the owners of the truck and their insurers. 16. In the present case, when the claimant, as injured, had decided to recover the compensation from the owners of both the said vehicles, the fact that the owner of the other offending vehicle, bearing registration No. AS-01L/6267, had chosen not to appear, would not mean that the owner of the said vehicle would not be made liable for payment of compensation to the claimant-respondent No. 1 to the extent of 50% of the total awarded sum of compensation. 17. In the present case, the total amount of compensation awarded is Rs. 22,000/-. As the injured had decided to recover the compensation from the owners of both the vehicles and their insurers/the learned Tribunal's observation, that the claimant has the liberty to claim damages against any of the two owners of the vehicle, is wholly misplaced in the face of the facts involved in the present case. 18. 22,000/-. As the injured had decided to recover the compensation from the owners of both the vehicles and their insurers/the learned Tribunal's observation, that the claimant has the liberty to claim damages against any of the two owners of the vehicle, is wholly misplaced in the face of the facts involved in the present case. 18. In other words, though as a proposition of law, in the case of composite negligence, the claimant has the option to proceed against any of the wrong-doers, the fact of the matter remains that in the present case, when the claimant has expressed his choice clearly by impleading both the owners of the vehicles involved in the accident, the owner and/or the insurer of one of these two vehicles could not have been made solely liable to pay compensation. 19. The learned Tribunal ought to have, therefore, apportioned the compensation payable by the owners of the said two vehicles and since the proceeding was being contested by the insurer of the vehicle No. AS 25-C-1523, this insurer, who is the appellant in the present appeal, ought to have been made liable to pay compensation to the injured to the extent of 50% of the said total sum of Rs. 22,000/- and the remaining 50% of the said amount of compensation, i.e., Rs. 11,000/- ought to have been directed to be paid by the owner of the vehicle bearing registration No. AS-01L-6267. Having not fastened the owner of the other vehicle, namely, AS-01L-6267, with the liability to pay compensation, because of the fact that the owner of this vehicle chose not to contest the proceeding, the impugned award cannot be entirely sustained. 20. In the result and for the foregoing reasons, while the quantum of compensation, determined, in the present case, as Rs. 22,000/-, is not interfered with, this appeal is partly allowed by directing the present insurer-appellant to pay 50% of the said compensation amount of Rs. 22,000/- with interest as had been directed by the learned Tribunal and the remaining amount of Rs. 11,000/- with interest 6% per annum from the date of making of the claim of the amount, till the payment thereof is made, is hereby directed to be paid by the owner of the vehicle No. AS-01L/6267 to the claimant respondent No. 1. 21. With the above observations and directions, this appeal shall stand disposed of. 11,000/- with interest 6% per annum from the date of making of the claim of the amount, till the payment thereof is made, is hereby directed to be paid by the owner of the vehicle No. AS-01L/6267 to the claimant respondent No. 1. 21. With the above observations and directions, this appeal shall stand disposed of. No order as to costs.