Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 370 (JK)

Oriental Insurance Company Ltd v. Raj Begum

2020-08-07

SANJEEV KUMAR

body2020
Judgment The Oriental Insurance Company (hereinafter referred to as the “insurer”) is in appeal against the award dated 11th October, 2012 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the “Tribunal”) in file No. 476/claim titled “Raj Begum and ors vs. Naseem Mehmood and others” whereby the Tribunal has held the insurer solely liable to pay compensation of Rs.24,26,000/- along with interest @ 7.5% per annum w.e.f 14th September, 2019 till its realization to respondent Nos. 1 to 6 (hereinafter referred to as the “claimants”) 2. The insurer is aggrieved and has challenged the impugned award, inter alia, on the following grounds: (i) That the Tribunal has failed to appreciate the evidence on record in proper perspective, in that, the Tribunal has held the offending vehicle i.e Load Carrier bearing registration JK02AA-4869 insured with the insurer solely responsible for the commission of accident, whereas there was an abundance of evidence to demonstrate that the accident in question had occurred due to the composite negligence of both the vehicles i.e Load Carrier bearing registration JK02AA-4869 and Car bearing Registration No.JK02K-4449 insured with respondent No.9 i.e National Insurance Company Ltd. (ii) That the compensation awarded by the Tribunal is exorbitant and excessive. 3. The appeal is opposed by learned counsel for the claimants contending that the conclusions drawn by the Tribunal on the basis of evidence on record are unexceptionable and do not call for any interference. On behalf of the claimants, it is submitted that the impugned award whereby a compensation of Rs.24,26,000/- along with interest has been awarded is, by all means, just and fair and cannot be, by any stretch of reasoning, be termed as “excessive” or “exorbitant”. 4. Mr. C.S.Gupta learned counsel for respondent No.9, however, submits that the Tribunal, after appreciating the evidence on record in the light of the FIR and the challan presented by the police with respect to the occurrence, has rightly concluded that the accident in which Dr. Ghulam Haider Naik died was as a result of rash and negligent driving of the Load Carrier insured with the insurer. It is submitted that the driver of the car insured with respondent No.9 was not in any manner negligent and therefore, he was rightly absolved by the Tribunal. 5. Ghulam Haider Naik died was as a result of rash and negligent driving of the Load Carrier insured with the insurer. It is submitted that the driver of the car insured with respondent No.9 was not in any manner negligent and therefore, he was rightly absolved by the Tribunal. 5. Having heard learned counsel for the parties and perused the record, I am of the view that the fundamental question that needs to be addressed in this appeal is; whether the motor vehicle accident that took place on 07.10.2005 near Petrol Pump, Dogra Hall Jammu in which the deceased lost his life was as a result of composite negligence of both the vehicles involved in the accident or it took place due to sole negligence of the driver of the Load Carrier ?. 6. The Tribunal has, however, held the offending vehicle i.e, Load Career as the only the vehicle responsible for the commission of accident. The Tribunal has, apart from relying upon the oral testimony of the witnesses produced by the claimants, has placed strong reliance on the police challan which was ultimately presented against the driver of the Load Carrier i.e respondent No.7. The Tribunal has absolved the driver of the car of any rash and negligent act contributing to the accident in question. The insurer, who has been fastened with the entire responsibility, has disputed the finding of fact returned by the Tribunal on the issue of negligence. 7. Before proceeding to appreciate the rival contentions of learned counsel for the parties, it would be appropriate to set out issue No.1 herein below: “Whether an accident occurred on 07.10.2005 near Petrol Pump Dogra Hall, Jammu due to rash and negligent driving of the offending vehicles No. JK02AK 4449 and JK02AA 4869 by their respective drivers i.e respondent Nos. 1 and 3 due to which the deceased sustained fatal injuries ? OPP. 8. The aforesaid issue is an issue of fact and was required to be determined by the Tribunal on the basis of evidence on record. The claimants have examined PWs Murad Ali, Mohd Rafiq and Dr. Abdul Shabir. 9. PW Murad Ali in his deposition before the Tribunal has stated that on 07.10.2005 when he was going towards Dogra Hall, Shalimar a car bearing registration No. JK02k-4449 came at a high speed from the wrong side and hit an Auto Load Carrier. The claimants have examined PWs Murad Ali, Mohd Rafiq and Dr. Abdul Shabir. 9. PW Murad Ali in his deposition before the Tribunal has stated that on 07.10.2005 when he was going towards Dogra Hall, Shalimar a car bearing registration No. JK02k-4449 came at a high speed from the wrong side and hit an Auto Load Carrier. The Load Carrier fell over the deceased resulting in his death on spot. He further stated that the accident took place due to the negligence of Naseem Mehmood, the driver of the Car. In cross examination, he stated that his statement was not recorded by the Police. 10. PW Mohd Rafiq in his statement has deposed that on a fateful day, he had gone to Shalimar to purchase some electrical items and when he reached ahead of Swastik Laboratory, a white coloured Car bearing registration No. JK02k-4449 came from Kachi Chawni side and knocked down a pedestrian . He further stated that in the meanwhile, an Auto Load Carrier also came at a high speed and collided with the Car and thereafter it turned turtle over the pedestrian. He then stated that he rushed to the spot and dragged the pedestrian from underneath the Auto Load Carrer. In cross examination, the witness stated that most of the injuries were suffered by the deceased due to the fall of Auto Load Carrer upon him. 11. PW Dr. Abdul Shabir in his statement has deposed that he was proceeding towards SMGS Hospital to attend his duty. On reaching Kachi Chawni, he met the deceased who was walking on the left side of the road. He stated that when the deceased reached near Petrol Pump Dogra Hall Jammu, a car came at a high speed from behind and knocked down the deceased . The car stopped on spot, but in the meanwhile, all of a sudden, an Auto Load Carrier came at a high speed and collided against the Car and fell over the deceased. He is very categoric in his statement that the accident in question took place due to the composite negligence of the drivers of both the vehicles. 12. Naseem Mehmood, the driver of the Car too has entered the witness box. He stated that while he was plying his car, it was hit from behind by a Load Carrier. He is very categoric in his statement that the accident in question took place due to the composite negligence of the drivers of both the vehicles. 12. Naseem Mehmood, the driver of the Car too has entered the witness box. He stated that while he was plying his car, it was hit from behind by a Load Carrier. He further stated that that he immediately stopped the car on spot and saw that the Load Carrier, after hitting his Car, had turned turtle. He denies that anybody was injured in the accident or any case was registered against him. In cross-examination, the witness stated that he was not aware as to who was responsible for the accident in which the deceased lost his life. 13. The driver of the Load Carrier, namely Mohd Latif, too has recorded his statement before the Tribunal. He stated that he was not driving the Load Carrier. He further stated that no FIR or challan was ever filed against him. 14. It may be noted that initially the claim petition was filed by the claimants against the owner-cum-driver of the Car aforesaid and the insurer of the Car i.e National Insurance Company Ltd. However, when the police upon investigation presented the challan against the driver of the Load Carrier, the claimants amended their claim petition and added the driver of the Load Carrier and its insurer i.e the Oriental Insurance Company as respondent Nos. 3 and 4. As rightly recorded by the Tribunal, from the oral evidence of the witnesses and the copy of challan, clearly two version of the occurrence are coming forth. If we believe the statement of PW Murad Ali, the accident has taken place due to the negligence of the driver of the Car, whereas as per the testimonies of PW Mohd Rafiq and Dr. Abdul Shabir, the accident was result of composite negligence of the drivers of both the vehicles i.e Car as well as the Load Carrier. However, as per the conclusion drawn by the Police as is contained in the challan presented before the Court, the involvement of the Load Carrier alone is found to have been established. 15. The Tribunal has, however, decided the issue by placing strong reliance on the police challan and has concluded that the accident has happened due to sole negligence of the offending vehicle i.e Load Carrier. 15. The Tribunal has, however, decided the issue by placing strong reliance on the police challan and has concluded that the accident has happened due to sole negligence of the offending vehicle i.e Load Carrier. The Tribunal has rejected the theory of composite negligence of both the vehicles contributing to the accident. The Tribunal appears to have taken the view on the ground that since the claimants have relied upon the police challan with regard to the occurrence, as such, it is not available to the claimants to escape from the consequences flowing from the rest of the challan. 16. Relying upon the judgments of Hon’ble Supreme Court in the cases of Oriental Assurance Company vs. Prem Lata Shukla, 2007 (5) Supreme 370 and National Insurance Company vs. Rattani and others, 2009 ACJ 925 , the Tribunal has held that, though, ordinarily the allegations made in the FIR would not be admissible in evidence per se, but once those allegations are made part of the claim petition, there is no doubt, whatever, that the Tribunal would be entitled to look into the same. In short, the view taken by the Tribunal in the matter is that once the claimants are relying upon the challan and have made it a part of their claim petition, it would not be open to them to dispute the conclusion with regard to the negligence drawn by the police in the challan. 17. I am afraid that the manner in which the evidence on record has been appreciated by the Tribunal is not correct. The oral evidence in the shape of statements of PW Murad Ali, Mohd Rafiq and Dr. Mohd Shabir is consistent and clearly points towards the composite negligence of both the vehicles. The manner in which the accident is explained to have taken place by the eye witnesses leaves one without doubt that the accident in which the deceased lost his life was a result of composite negligence of both the vehicles. It is difficult to ignore the categoric statements of the said witnesses, particularly PW Mohd Rafiq and Dr.Mohd Shabir. 18. So far as FIR and the challan pertaining to the accident is concerned, it may be noted that initially the FIR was registered with regard to the accident indicating, prima facie, the involvement of both the vehicles. It is difficult to ignore the categoric statements of the said witnesses, particularly PW Mohd Rafiq and Dr.Mohd Shabir. 18. So far as FIR and the challan pertaining to the accident is concerned, it may be noted that initially the FIR was registered with regard to the accident indicating, prima facie, the involvement of both the vehicles. However, it appears that ultimately the police presented the challan only against the driver of the Load Carrier. The reliance placed by the Tribunal on the judgments of Hon’ble Supreme Court is also misplaced. It is not a case where the claimants have based their claim on the police challan. As a matter of fact, when the claim petition was initially filed, the claimants had arrayed only the driver cum owner of the offending Car and its insurer i.e National Insurance Company, but, later on, when the police presented the challan against the driver of Load Carrier, the claimants, by way of abundant precaution arrayed the owner cum driver of the Load Carrier and its insurer also as party respondents. 19. From the perusal of original claim petition and the amended claim petition, it would clearly transpire that notwithstanding the challan produced by the police against the driver of the offending vehicle i.e Load Carrier, the claimants have sought compensation on account of rash and negligent act of the driver of both the vehicles pleading clearly that the accident was a result of composite negligence of the drivers of both the vehicles involved in the accident. Simply because, the claimants have placed on record the challan does not mean that they have based their claim on the challan. As a matter of fact, when the claim petition was filed, the police had not concluded the investigation and, therefore, as a proof of occurrence, the claimants had annexed with their claim petition only a copy of FIR. Neither in the pleadings, nor in the statements of the witnesses of the claimants, any reliance has been placed on the challan which was presented by the police only against the driver of Load Carrier. 20. In the face of overwhelming evidence on record, it is a foregone conclusion that the accident has occurred due to composite negligence of both the vehicles. 21. 20. In the face of overwhelming evidence on record, it is a foregone conclusion that the accident has occurred due to composite negligence of both the vehicles. 21. Having held thus, it remains to be seen as to whether the insurer can still be directed to pay the whole compensation to the claimants. As is brought to my notice that entire amount of compensation awarded by the Tribunal has been deposited in the Registry of this Court pursuant to the order of this Court dated 09.04.2013 passed in this appeal. To resolve the issue of liability to pay compensation, it is necessary to bear in mind the clear distinction between the contributory negligence and composite negligence. 22. In the case of contributory negligence, the victim of accident must have himself contributed to the accident and, therefore, cannot be permitted to claim compensation for the injuries sustained by him in the accident to the extent of his own negligence. In the said case, the extent of negligence of the victim of the accident is required to be determined, so that the damages recovered by him are reduced in proportion to his contributory negligence. 23. However, same is not true in the case of composite negligence. In composite negligence, a person who has suffered in the accident does not contribute to the accident, but suffers due to combination of negligence of two or more other persons. 24. In the instant case, the deceased was not, in any way, negligent, nor had he contributed to the negligence in any manner. The accident in which he suffered fatal injuries was a result of combination of negligence of the drivers of both the vehicles. It was the driver of the offending Car who while driving his Car at a high speed and in a rash and negligent manner hit the deceased and later on the driver of the offending Load Carrier also coming at a high speed could not control his vehicle and hit against the offending Car. It turned turtle and fell on the deceased which ultimately resulted in his death. The accident was a clear case of composite negligence and in the case of composite negligence, there is no question of proportioning the blame and both the tortfeasors are jointly and severally liable to pay compensation/damages to the victim. 25. It turned turtle and fell on the deceased which ultimately resulted in his death. The accident was a clear case of composite negligence and in the case of composite negligence, there is no question of proportioning the blame and both the tortfeasors are jointly and severally liable to pay compensation/damages to the victim. 25. It is held by the Hon’ble Supreme Court in the case of Khenyei vs New India Assurance Co.Ltd.& Ors, (2015) Supreme Court Cases 273 that in case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court/Tribunal to determine the inter se extent of composite negligence of the drivers. However, determination of extent of negligence between the joint torfeasers is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in main case, one joint tortfeasor can recover the amount from the other in the execution proceedings. The observations of the Hon’ble Supreme Court as contained in paragraph 22 of the Judgment are noteworthy and reproduced hereunder: “22 What emerges from the aforesaid discussion is as follows: 22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award”. 26. It is, thus, evident that the liability of joint tortfeasors is joint and severe and the claimants are well within their rights to recover the same from both or any of them. The apportionment of negligence between the tortfeasors is only for the purpose of determining their inter se liability. In the instant case, as held hereinabove, this Court finds the Drivers of both the offending vehicles, i.e Load Carrier and the Car, guilty of composite negligence and their extent of negligence in the light of evidence on record could be and is pegged at 50:50. 27. So far as quantum of compensation is concerned, learned counsel for insurer could not point out any serious infirmity or even a calculation error. However, a perusal of award would indicate that the same is not in consonance with the law laid down in the cases of Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 and National Insurance Company Ltd vs. Pranay Sethi and ors, AIR 2017 SC 5157 . The Tribunal has applied the multiplier of 9, whereas the applicable multiplier in the instant case where the age of the deceased at the time of accident was 54 years is 11. Similarly the sums payable under the conventional heads are also required to be corrected/modified so as to bring them in conformity with the law. 28. The Tribunal has applied the multiplier of 9, whereas the applicable multiplier in the instant case where the age of the deceased at the time of accident was 54 years is 11. Similarly the sums payable under the conventional heads are also required to be corrected/modified so as to bring them in conformity with the law. 28. I am aware that the claimants have not filed any cross-objections or appeal seeking enhancement of the compensation, nevertheless, it is the duty enjoined upon the Tribunals/Courts to ensure that the victims of the accident get fair and just compensation. The Hon’ble Supreme Court in its judgment rendered in the case of Jitendra Khimshankar Trivedi and others v. Kasam Daud Kumbhar and others; 2015 (4) SCC 237 , has held that the Appellate Court is competent to enhance the compensation in an appropriate case even in the absence of appeal or cross-objections by the claimants. In view of the aforesaid, the amount of compensation awarded by the Tribunal is modified in the following manner: Loss of dependency: Rs.2934360/- Funeral expenses Rs.15000/- Loss of estate Rs.15000/- Loss of spousal consortium to claimant No.1 Rs.40000/- Loss of parental consortium@ 40000/-each to claimant Nos. 2 to 5 Rs.1,60,000/- Total Rs.31,64,360/- 29. The awarded amount shall carry pendent lite and future interest at the rate of 7.5% per annum. The entire award shall be satisfied by the appellant insurer who shall be entitled to recover half of the amount from respondent No.9 by filing an execution petition before the Tribunal. 30. Registry to release the amount deposited in favour of the claimants. It is made clear that the claimant Raj Begum, the wife of the deceased shall be entitled to 30% of the total compensation, whereas claimant Nos. 2 to 6 shall be entitled to the balance 70% of the compensation in equal shares. 50% of the amount payable to each of the claimants shall be kept in the FDR for a period of five years. 31. The appeal is disposed of in the above terms.