Kantibai and Others vs Noharram and Others

I.M. Quddusi, J.—Since both these appeals have been filed against the impugned award dated 22-1-2010 passed in Claim Case No. 54/2009 by the Addl. Motor Accident Claims Tribunal, Bemetara, District Durg (C. G), they are being disposed of by this common order.

M.A. (C) No. 242/2010 has been filed by the owner of the Tractor-Trolley challenging the award dated 22-1-2010 so far as it relates to fastening of liability to pay compensation on him whereas M.A. (C). 221/2010 has been filed by the claimants for enhancement of the amount of compensation.

Brief facts of the case as per the version of the claimants are that on 7-5-2009 one Tractor bearing Regn. No. C.G. 10-D/2897 & Trolley No. C.G. 10-D/2897 which were being driven by Non-applicant no. 2 Takeshwar in a rash and negligent manner dashed the motorcycle, as a result of which, Manharan who was pillion rider of the said motorcycle died in the said accident.

At the time of accident, the deceased was aged about 46 years he was working as lineman in Chhattisgarh Electricity Board and was drawing the monthly salary of Rs. 19721/-. The claimants being legal representatives/ dependents of the deceased have filed Claim Petition u/s. 166 of the Motor Vehicles Act on various heads.

The learned Claims Tribunal has framed the question as to whether the accident was caused when Tractor bearing Regn. No. C.G. 10-D/2897 driven by non-applicant no. 2 in a rash and negligent manner dashed the motorcycle. The Tribunal has answered that the accident was the result of the contributory negligence equally on the part of both the drivers and the deceased Maharan died in the said motor accident. It has worked out the total loss of dependency as Rs. 15,79,656/- and after considering the extent of negligence of the two drivers to be 50:50 has fixed the compensation as Rs. 7,89,828/- Besides this, the Tribunal has also granted Rs. 12,500/- over the other heads and the total amount of compensation was fixed as Rs. 8,02,328/- which the claimants are entitled to receive from the non-applicants jointly or severally.

We have heard learned counsel for the parties and have also gone through the records of the Tribunal.

A perusal of the records of the Tribunal shows that there is no evidence regarding contributory negligence and the deceased was sitting as pillion rider on the motorcycle. Where a person was injured or died as a result of negligence on the part of two or more wrongdoers, it can be said that the person was injured or died on account of the composite negligence of those wrongdoers. Therefore, it could be a case of composite negligence and not contributory negligence.

In case of T.O. Anthony Vs. Karvarnan and Others, Hon''ble the Apex Court has laid down the interpretation of composite negligence and contributory negligence. Paras 5, 6 & 7 are relevant here and quoted as under.

The Tribunal assumed that the extent of negligence of the appellant and the first respondent is 50:50 because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

"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.

(Emphasis supplied)

Therefore, 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 himself was negligent, then it becomes necessary to consider 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 contributory negligence. Therefore, where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.

Therefore, in case of composite negligence, as mentioned in Para 6 quoted above, each wrong doer is jointly and severally liable to the claimants for payment of entire damages and the claimants have the choice of proceeding against all or any of them. Hence, we are of the opinion that in the present case the claimants need not prove the extent of responsibility of each wrongdoer separately nor any exigency arises for the Court to determine the extent of liability of each wrongdoer separately.

In view of the above discussion, the Claims Tribunal has committed manifest error of law in considering the negligence of the other driver (wrongdoer to the extent of 50% and reducing it from the amount of compensation as part of contributory negligence.

Further, the Claims Tribunal has held that there was breach of conditions of the insurance policy and has exonerated the Insurance Company on the ground that the bricks were loaded in the Trolley attached to the Tractor and therefore, it has drawn an inference that the Tractor & Trolley was being used for commercial purpose.

In this regard, Investigating Officer R.P. Singh was examined as N.A.W. 2. He has stated in his evidence that when the Tractor & Trolley were seized, the Trolley was empty and he found no raw bricks therein. Though in the FIR it was mentioned that raw bricks were loaded in the Trolley, but the contents of the FIR were not proved by the scriber and it was nobody''s case that the bricks were loaded in the Trolley. On the other hand, the scriber of the FIR namely Shiv Kumar (A.W. 2) has stated in his cross examination that the Tractor Trolley was empty and he has denied the suggestion that at the time of accident, the bricks were loaded on the Tractor-Trolley. Even in his cross examination, nothing was asked regarding loading of bricks and the case of the owner was that the Tractor-Trolley was coming after getting it repaired in the workshop where the welding work was done.

Therefore, the substantive evidence came before the Court was that the Tractor Trolley was empty at the time of accident and even for the sake of arguments, if it is presumed that there were raw bricks, the purpose of loading of raw bricks was not mentioned. No body has proved that it was being used for commercial purpose. Even the raw bricks could be used for agricultural purpose that is for construction of pump house or mad etc. However, this is not the case of any of the parties. Therefore, it cannot be said that the Tractor Trolley was used in breach of conditions of insurance policy.

In view of the above discussion, we are of the opinion that the learned claims Tribunal has wrongly fastened the liability upon the owner/appellant to pay compensation and it is the Insurance Company which is liable to pay compensation.

With regard to the quantum, we found that the Tribunal has not seen the future prospects of the enhancement of salary as the age of the deceased was about 46 years and he was a permanent employee of Chhattisgarh Electricity Board. Therefore, considering the future prospects of income of the deceased at least 30% was liable to be added, as laid down by Hon''ble the Apex Court in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another,

Learned counsel for the insurance company at this stage submits that compassionate appointment was granted and that was not under consideration. He has placed reliance on Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal and Others, However, nothing like was pleaded in its written statement before the Tribunal. Since learned counsel for the appellants/claimants submits that he will not press for adding 30% towards future prospects, we are not considering this aspect at this stage and only confine the relief to the extent that reduction of 50% by the Claims Tribunal as part of contributory negligence was bad in law as at the most it could have been the case of composite negligence and not contributory negligence. However, as discussed above, there was no evidence on record to prove the contributory negligence.

Therefore, we allow both the appeals. The appellant-owner is exonerated from the liability to pay the compensation and the amount of compensation is enhanced to Rs. 15,79,656/- as total loss of dependency and further we also grant a sum of Rs. 12,500/- over the other heads that has already been awarded by the Claims Tribunal. Thus, the total amount of compensation would come to Rs. 15,92,156/- which the claimants are entitled to receive from the Insurance Company. The said amount shall also carry simple interest @ 6% per annum from the date of filing of the claim petition till its payment is made. The amount deposited by the Appellant owner shall be refunded. However, if the whole or any part of the sum has already been disbursed to the Claimants, it will be open for the owner to realize the said amount from the Insurance Company. No order as to costs.