N. Narsamma vs Dayashanker

As all these above appeals arise out of the same accident occurred on 16.01.2012 involving the same vehicle pickup bearing registration No. C.G.12/R/3169 (hereinafter referred as “offending vehicle”), they are being disposed of by this common judgment.

These Miscellaneous appeals have been preferred by appellants/claimants against the award dated 13.12.2016 passed by the learned First Additional Motor Accident Claims Tribunal, Korba, District- Korba (C.G.) in MACT Nos. 36/2013, 38/2014 & 37/2013 whereby the learned Tribunal has dismissed the claim applications filed under Section 166 of Motor Vehicles Act.

As per claim petition, on 16.01.2012 at about 11:00 P.M., the claimant- Smt. N. Narsamma along with her husband and son-N. Chandrashekhar (Claimant) was returning to Korba from Ramkrishna Care Hospital by ambulance bearing registration No. C.G.12/R/3169. When they reached nearby village-Dhourabhatha, Police Station- Hirri, at that time, due to rash and negligent driving of respondent No.1, ambulance hit the trailer. On account to this, her husband sustained grievous injuries and he succumbed to the same on 17.01.2012 during treatment at CIMS hospital, Bilaspur (C.G.). Due to accident, appellant/claimant- Smt. N. Narsamma also sustained grievous injuries on waist, spinal cord and other body parts and appellant/ claimant N. Chandrashekhar also suffered fracture of right hand and injuries on other parts of the body and was admitted to hospital for treatment.

The unfortunate widow- Smt. N. Narsamma and children of the deceased filed a claim petiton under Section 166 of the Motor Vehicles Act, 1988 (in short, “the Act of 1988”) in MACT No. 38/2014 and injured- Smt. N. Narsamma and N. Chandrashekhar also filed separate claim petitions under Sections 166 of the Act in MACT Nos. 36/2013 & 37/2013 claiming compensation under various heads. However, the learned Tribunal considering the pleadings of the respective parties and the nature of evidence adduced by them, dismissed all the claim petitions by the impugned award.

Learned counsel for the appellants/claimants submits that the learned Claims Tribunal failed to appreciate the documents and evidence available on record. It is further submitted that the learned Claims Tribunal recorded a finding that the accident did not occur due to rash and negligent driving on the part of respondent No.1 and hence the claim petition is not maintainable under the provisions of Section 166 of Motor Vehicles Act, despite the fact that the claimants duly deposed that the respondent No.1 was driving the ambulance in a rash and negligent manner. Learned claims Tribunal failed to appreciate the evidence on record in order to provide just and proper compensation to the Claimants. He further submits that the Motor Vehicle Act is a beneficial legislation and strict interpretation is not required under the law and documents with regard to accident case are sufficient to prove that vehicle of non-applicant No.1 was also involved in the said accident. All the witnesses deposed that respondent No.1 was driving the ambulance in a rash and negligent manner, therefore, the finding recorded by the learned Tribunal is not according to facts and law, hence is not sustainable. In support of his argument, reliance has been placed on the judgment rendered by Hon'ble Suprem Court in the matter of Pawan Kumar & another Vs. M/s Harkishan Dass Mohan Lal and Others in 2014 (2) C.G.L.J. 29 (SC).

Learned counsel for respondents supported the award of the learned Tribunal.

Heard counsel for the parties and perused the material available on record.

Before learned Claims Tribunal, Chandrashekhar was examined as an eye-witness and he deposed that at the time of accident, he was sitting in the ambulance and respondent No.1 was driving the vehicle rashly and negligently. Dayashankar Das, Driver of ambulance i.e. respondent No.1 also stated in his statement that he was driving the ambulance at the time of accident and the driver of one unknown trailer dashed the vehicle. The learned Claims Tribunal found that a criminal case was registered against the driver of unknown trailer and police has not registered against any case against respondent No.1 and it is not proved that accident occurred due to rash and negligent driving of respondent No.1. Hon’ble Apex Court in the matter of Pawan Kumar & another Vs. M/s Harkishan Dass Mohan Lal and Others has held in paras 6 & 7 as under:-

The distinction between the principles of composite and contributory negligence has been dealt with in Winfield & Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:-

“WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff’s advantage to show that that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role.

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The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous. ……………..”

Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:

“6. “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.

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 to 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.”

In the present case also, two vehicles are involved in the accident and respondent No.1 claims that the driver of the other vehicle/trailer was negligent and, therefore, it is the duty of learned Claims Tribunal to consider whether respondent No.1 was also partly responsible for the accident or not.

Learned counsel for the claimants also submits that if under Section 166, they have not proved the negligence of the driver then under Section 163 A they are entitled for compensation.

Section 163A of Motor Vehicles Act provides as under:-

(1) Notwithstanding anything contained in this Act or any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation- For the purpose of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (B of 1923),

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3). The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.

Considering the entire facts and circumstances of the case and principles laid down by Hon’ble Apex Court, evidence available on record, it is clear that the findings so recorded by the learned Claims Tribunal are not based on proper appreciation of oral and documentary evidence. As such, the impugned awards dated 13.12.2016 in all the claim petitions are not sustainable. Therefore, the impugned awards dated 13.12.2016 in MACT Nos.38/2014, 36/2013 & 37/2013 are hereby set aside. The matters are remitted back to the learned Claims Tribunal for deciding the Issue Nos. 1 to 5 afresh after affording opportunity of hearing to the parties, to adduce additional evidence, oral and documentary, in support of their case/claim and also afford opportunity to amend their pleading, if any. The learned Tribunal is at liberty to frame additional issue, if necessary.

The Registry shall immediately send back the original record to the concerned tribunal for deciding the claim cases on its own merit expeditiously, preferably within six months from the date of receipt of copy of this order.

It is made clear that this Court has not expressed anything on merits of the case and the Tribunal to decide the same after due appreciation of the evidence without being influenced by the observations made hereinabove.

Parties are directed to remain present before learned Claims Tribunal on 10.05.2023.