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2013 DIGILAW 894 (RAJ)

National Insurance Co. Ltd. v. Dhannalal

2013-05-06

VIJAY BISHNOI

body2013
JUDGMENT 1. - This appeal has been preferred by the appellant - Insurance company against the judgment and award dated 26.06.2008 passed by the learned Judge, Motor Accident Claims Tribunal, Bhilwara (for short 'the Tribunal' hereinafter), whereby a compensation of 4,54,000/- has been awarded in favour of the claimants. 2. Brief facts, necessary for disposal of this appeal are that Santosh Kumar son of Dhanna Lal was travelling in Tata Sumo No. RJ27-1C-2254 on the National Highway No.8, where a forehead collision occurred between Tata Sumo No.RJ27-1C-2254 and Bus No.RJ-36P-0059, as a result of which, Santosh Kumar died. The claimants have preferred a claim petition against the driver and owner of the Tata Sumo Vehicle as well as the appellant-Insurance Company for awarding compensation to the tune of Rs. 31,62,000/-. On the basis of the pleadings behalf of the parties, the of the parties, the learned Tribunal framed as many as four issues. After taking into consideration the evidence produced onlearned Tribunal has decided Issue No.1 against the non-claimants and in favour of the claimants, while holding that the accident took place on account of rash and negligent driving of the driver of Tata Sumo No. RJ27-1C-2254, in which Santosh Kumar son of Dhannalal died and the learned Tribunal while deciding Issue No.2 has assessed the income of the deceased as Rs. 3500/- per month and awarded a compensation of Rs. 4,54,000/- in favour of the claimants under all heads and directed the non-claimants to pay the amount of compensation along with the interest at the rate of 6% from the date of filing of the claim petition. 3. Being aggrieved with the aforesaid, the appellant-Insurance Company has preferred this appeal. 4. The learned counsel for the appellant has argued that the learned Tribunal has grossly erred in deciding the Issue No.1 against the appellant, though it is clear from the material available on record that the accident took place due to rash and negligent driving by the driver of the Bus No.RJ-36P-0059, however, the learned Tribunal has ignored this aspect of the matter. 5. 5. Alternatively, the learned counsel for the appellant has argued that the bus driver was equally negligent for causing accident and in such circumstances, the learned Tribunal has wrongly held liable the driver of the Tata Sumo only for the accident and the learned Tribunal should have also held the bus driver equally responsible for the accident. It has further been contended by the learned counsel for the appellant that the respondent-claimants did not implead the bus driver, its owner and the insurer as party respondents before the Tribunal and, therefore, also the impugned award passed by the learned Tribunal is liable to be rejected. 6. Per contra, learned counsel for the respondent claimants has supported the judgment passed by the learned Tribunal and has claimed that there is no illegality in the findings arrived at by the learned Tribunal in respect of the Issue No.1 as from the evidence of the witnesses, it is clear that the accident took place when the driver of the Tata Sumo No. RJ27-1C-2254 was overtaking another vehicle and during the course of overtaking, on account of rash and negligent driving by driver of the Tata Sumo, it had collided with the bus, which was coming from the opposite direction. It is also argued that even if it is assumed that the accident occurred on account of composite negligence of driver of Tata Sumo and the driver of the bus, then also the claimants can proceed against all or any of them. 7. The learned counsel for the claimants has placed reliance upon the judgment of the Hon'ble Apex Court in T.O. Anthony v. Karvarnan & Ors., reported in (2008) 3 SCC 748 and has prayed that the appeal preferred by the appellant - Insurance Company may be dismissed. 8. This Court has considered the arguments advanced by learned counsel for rival parties. 9. The learned Tribunal, while deciding the Issue No.1, has taken into consideration the evidence adduced on behalf of the parties and thereafter given the finding that the accident occurred due to rash and negligent driving of the driver of the Tata Sumo No. RJ27-1C-2254, who was trying to overtake another vehicle when the forehead collision took place between the Tata Sumo and the bus, which was coming from opposite direction. The learned Tribunal has also taken into consideration the police record prepared during the course of investigation of the criminal case registered in pursuance to the accident, wherein Santosh Kumar died. This Court does not find any illegality in the findings arrived at by the learned Tribunal, while deciding the Issue No.1. 10. So far arguments of the learned counsel for the appellant that the learned Tribunal should have held that the accident occurred on account of composite negligence of the driver of the Tata Sumo and the bus, and should have also held liable the bus driver to the extent of his fault and should have divided the payment of compensation between two wrongdoers as per extent of their fault, and the claimants have not impleaded the driver and owner of the bus and the insurance company as party respondents and, therefore, the claim petition preferred by the claimants was liable to be rejected are not tenable in view of the decision of the Hon'ble Apex Court in T.O. Anthony v. Karvarnan & Ors. (supra), wherein the 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 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." 11. In the facts and circumstances of the case and in view of the law laid down by the Hon'ble Apex Court in T.O. Anthony v. Karvarnan & Ors. (supra), there is no force in the submissions of the counsel for the appellant and this Court does not find any illegality in the award dated 26.06.2008.Consequently, the appeal fails and is hereby dismissed.Appeeal Dismissed. *******