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Judgment
Hon''ble Shri Rangnath Chandrakar, J.
(Appeal u/s 173 of the Motor Vehicles Act, 1988)
This is claimants'' appeal seeking enhancement of compensation awarded by Additional Motor Accident Claims Tribunal (FTC) (for short, "the Tribunal") Balod, District Durg (CG), vide award dated 17-8-2009in Claim Case No. 91/2009, The facts, in brief, are that on 27-1-2008 the deceased Romanlal Sahu was going to village Khubatola, Police Station Dongargarh in a Maruti Van bearing registration No. CG-04ZB-5857 to attend the engagement ceremony of his friend along with four other persons, driven by the first respondent (belonging to second respondent and insured with third respondent) and when Maruti van reached near the Sales Tax Barrier at village Chola, it dashed one Minibus standing on the road, as a result of which he sustained injuries, thereafter he was admitted in hospital for treatment and during the course of treatment he died.
The appellants/claimants, unfortunate mother and brothers of deceased - Romanlal Sahu filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 claiming Rs. 11,35,000/- as compensation for his death in motor accident which took place on 27-1-2008, stating therein that at the time of accident the age of the deceased was 25 years and by occupation he was driver of commercial/goods vehicle, the Tribunal has awarded a sum of Rs. 1,34,000/- as compensation to the claimants along with interest @6% per annum from the date of application till its actual payment.
The Tribunal, on a close scrutiny of the evidence led before it, held that it was a case of contributory negligence on the part of drivers of both the vehicles i.e., Maruti Van bearing registration No. CG-04ZB-5857 and Mini Bus, deceased Romanlal Sahu, i.e., occupant of Maruti Van sustained injuries and died in the said accident; both the drivers of Maruti Van and Minibus equally contributed to the cause of accident; respondent No.3; the National Insurance Company Limited liable for payment of compensation as it could not establish violation of policy conditions, assessed compensation of Rs..2,68,000/- payable to the claimants due to death of Romanlal in the above accident; reduced the above amount by 50% towards contributory negligence of driver of Minibus for want of his impleadment in the case; and awarded Rs.1,34,000/- as compensation to the appellants/claimants along with interest @ 6% per annum from the date of claim application till its actual payment.
Shri P. P. Sahu, learned counsel appearing for the appellants/claimants submits that the deceased was occupant of the Maruti Van bearing registration No. CG-04ZB-5857 and was not its driver; the case is of composite negligence of both Maruti Van and Minibus drivers and in such case the appellants/claimants are free to initiate claim petition against all or any of them and their claim cannot be defeated or apportioned for want of impleadment of other vehicle and the Tribunal has fallen in error in deducting 50% amount of compensation awarded by it towards negligence of other Minibus driver. In support of his arguments, he referred to the judgment of Supreme Court rendered in the matter of T.O. Antony vs. Karvarnan and others, reported in 2008(1) ACCD 265 (SC).
Per contra, Mr. K.K. Dewangan, learned counsel appearing for respondents No. 1 & 2 and Mr. Shreekumar Agrawal Sr. Advocate with Mr. Anand Gupta, counsel for respondent No.3 supported the award impugned and submitted that in the facts and circumstances of the case amount awarded by the Tribunal is just and reasonable, which needs no interference.
I have heard learned counsel for the parties and perused the award impugned including the record of the Tribunal.
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 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.
Indisputably, the deceased Romanlal Sahu was occupant of Maruti Van bearing registration No. CG-04ZB-5857 and was not its driver; the accident had occurred due to collision between both the Maruti Van and Minibus, therefore, it was a case of composite negligence of both the Maruti Van and Minibus drivers and it was not necessary for the appellants/claimants to claim compensation against the other Minibus driver also and the amount of compensation cannot be deducted on account of alleged negligence of other Minibus driver not impleaded in the case.
The position of law is now well settled. The Supreme Court in the case of T.O. Anthony Vs. Karvarnan and Others, 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 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.
By applying the ratio of law laid by the Supreme Court in the case referred hereinabove in the facts and circumstances of the case, in my considered opinion, the Tribunal has fallen in error in reducing 50% amount of compensation towards alleged negligence of other Minibus driver not impleaded in the case.
Accordingly I set aside the finding of contributory negligence and hold that appellants/claimants are entitled to receive the entire amount of compensation i.e., Rs.2,67,000/- in place of Rs.1,34,000/- awarded by the Tribunal. The above amount shall carry interest at the rate of 6% per annum from the date of application till the date of actual payment.
The respondent No.3/the National Insurance Company Limited is granted three months time to deposit the entire amount of compensation before the concerned Claims Tribunal.
The amount, if any, paid to the appellants/claimants, shall be adjusted from the awarded amount. The appeal is allowed to the extent indicated above. No order as to costs.