National Insurance Company Ltd. vs Saroj and Others

G.D. Saxena, J.—This is an appeal preferred u/s 173 of the Motor Vehicles Act 1988 by the appellant/National Insurance Company against an Award dated 25th June 2004 in Claims Case No. 16/2003 passed by the Motor Accidents Claims Tribunal Bhind (M.P.) granting thereby an amount of Rs. 3,67,000/- against the appellant and respondent No. 7-owner of the truck bearing No. HR38-C/5655 to satisfy the amount on the principles of joint and several liability while exonerating respondent No. 8-owner and the respondent No. 9-New India Insurance Company of truck No. MP09-KA/5583 from liability of payment of award amount to the claimants of the deceased-driver Naresh of aforesaid Truck No. MP09-KA/5583. Facts of the case in short just for decision of this appeal are that on 6th August 2003 in midnight deceased-driver Naresh of the truck No. MP09-KA/5583 owned by Kalyan Chand, respondent No. 8 and insured with respondent No. 9-New India Insurance company was going to destination. As the truck reached near Byora district Rajgarh M.P., it was made with head on collision from front side with another truck No. HR38-C/5655, driven rashly and negligently by driver Iqbal Khan. In the result, driver Naresh and cleaner Lalaram of truck No. MP09-KA/5583 as well as another driver Iqbal Khan of truck No. HR38-C/5655 died on the spot. The F.I.R. of the incident was lodged. Since both the accused-drivers of the trucks involved in accident died, the final report was sanctioned by the criminal court.

While submitting the claim petition, it was pleaded that the deceased Naresh, who was driver of fateful truck at the time of accident was aged 25 years. He was healthy person and used to earn Rs. 5,000/- monthly. He left behind him his wife, four children and parents who were totally dependents on his earnings. The claimants/respondents thus claimed Rs. 24,93,000/- by way of compensation from respondents, i.e., owners and the Insurance companies of the trucks involved in accident. After hearing the parties and considering the evidence on record, the learned tribunal awarded a sum of Rs. 3,67,000/- to the claimants against the owner and Insurance company of the opposite truck involved in accident while exonerating the owner and Insurance Company of the truck in which the deceased was going. Against this finding of exoneration, other Insurance Company has come up in this appeal.

It is contended by the learned counsel for the appellant that the accident was the result of the composite negligence of both the drivers of the trucks involved in accident, hence, the owners of both vehicles by way of vicarious liability and the Insurance companies insuring both the trucks were liable to indemnify the liability of the insured-owners. It is, therefore, stated that the tribunal has erred in exonerating the owner and Insurance company related to the truck involved in accident which was driven by another deceased-driver namely, Naresh who was equally responsible for causing accident. Hence, the insurance company of another truck bearing No. MP09-KA/5583 ought to have been held liable to indemnify the liability of the insured to the extent of the negligence of its driver in causing accident for satisfying the award under appeal. It is, thus, prayed that by allowing the appeal, the award for payment of the amount by the Insurance company which insured the truck No. HR 38C/5655 involved in accident may be set aside and instead the owner of Truck No. MP09-KA/5583 and the Insurance Company which insured the truck may be directed to indemnify the amount of compensation to the heirs of deceased driver.

On the other hand, learned counsel appearing on behalf of respondent No. 9-New India Insurance company vehemently opposed the contention of the appellant-National Insurance company and contended that the accident between the two trucks happened in peek hours in night and except Mahesh there is no statement of any eyewitness on record of learned tribunal. No site plan prepared by the Investigating Officer is on record which may indicate the negligence of the wrong doer/driver of the trucks involved in accident. Learned counsel pointed out that from the evidence of aforesaid witness Mahesh, it comes on record that the wrong doer of accident was Iqbal Khan, driver of the opposite vehicle i.e. truck No. HR 38C/5655, as just before the incident in peek hours of night, the driver of truck No. HR 38C/5655 used the flash lights towards the driver of the truck coming from opposite side as a consequence the unfortunate accident took place. So, according to the counsel, the learned tribunal rightly fixed the liability of the driver of truck No. HR 38C/5655, which being based on proper appreciation of evidence, requires no interference by this court. He therefore prayed for dismissal of the appeal.

Heard the learned counsel for the parties. Also perused the record of the tribunal and the law applicable to the case at hand.

The question for consideration in this appeal is whether the alleged accident was a result of contributory negligence on the part of driver of truck No MP09-KA/5583 and even then the Insurance company insuring the aforesaid truck is liable to be exonerated and/or whether both the trucks were responsible for causing accident and both drivers of the trucks involved in accident are responsible equally so both drivers, owners and insurance companies are jointly and severally liable to pay the award amounts to the heirs of deceased?

Mahesh (AW-2) deposed that he was working as cleaner on the truck owned by Kalyan Chand Jain and on a fateful night at about 2 a.m., he, driver Naresh and another cleaner Lalaram were going towards Bombay. The truck was driven by driver Naresh. The accident occurred near Byora town towards Indore. In the accident driver Naresh died on the spot. In cross-examination, he admitted that the accident was result of head on collusion of both the trucks involved in accident. He further admitted that the driver of truck coming from opposite direction caused the accident by rash and negligent driving. He also admitted that the driver of the truck coming from opposite direction used the beam light towards his truck driver. Thereafter the driver of the truck No. MP09-KA/5583 took the vehicle below the road side. The truck coming from opposite direction on road dashed his truck causing death of both cleaner and driver Lalaram and Naresh as well as the driver of opposite truck namely, Iqbal Khan. He stated that he was injured in the accident and after accident, he lodged the F.I.R. at concerning Police Station. On perusal of the F.I.R. (Ex. P/1-C) it seems that the witness narrated about the fact that his truck was hit from front side by another truck driven by driver Iqbal Khan in which driver Ramlal/Lalaram and Naresh were injured with driver Iqbal Khan of another truck. So, Mahesh (AW-2) is only alive witness to the accident. It is further seen from the record that no spot-map prepared during investigation was filed or proved before the tribunal in support of the version of sole eyewitness of the incident.

Now, in the light of the legal aspect involved in the case, this court is now going to examine the difference of composite and contributory or sole negligence on the basis of the principles laid down by the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others, . In the case of T.O. Anthony (supra), the Hon. Court, while considering the composite or contributory negligence, observed as follows: -

''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 stands 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.

Prior to above, in the case of The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, , it was held: -

Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other.

Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence.

In the present case, two vehicles are involved in the accident. This is a case where damages for loss or injuries are payable in respect of composite negligence of the drivers of both the vehicles. From perusal of the evidence, it is proved that driver-deceased Naresh of Truck No. MP09-KA/5583 and driver Iqbal Khan of truck No. HR 38C/5655 were responsible for head on collusion of both the trucks. In that case, the owner of a vehicle can be held vicariously liable only to the extent of the negligence caused by his employee, who is the driver of his vehicle. The insurer of a vehicle can be fastened with liability only on the basis of the contract of insurance and that too only to indemnify the insured of that vehicle. Having thus examined the extent of negligence on the part of the drivers of both vehicles, this court is of the view that 50% negligence each can be attributed against both the drivers of the offending vehicles. Since the claimants of the present appeal are legal heirs of the deceased-driver Naresh, they are entitled to 50% of the assessed amount by the tribunal.

On coming to next issue regarding quantum of compensation as awarded by the learned tribunal, it seems that the award was passed on lower side. Considering the material on record, the amount of Rs. 40,000/- for love and affection for three sons and daughter of deceased, Rs. 20,000/- by way of consortium to wife looking to the age of deceased, Rs. 10,000/- for transportation of dead body from place of incident to residence of deceased and Rs. 10,000/- for funeral expenses, thus total amount Rs. 80,000/- are enhanced in addition to the amount of Rs. 1,83,500/-, i.e., 50% of the awarded amount. Now, total amount of Rs. 2,63,500/- (Rs. Two lacs sixty three thousand and five hundred only) with 7% yearly interest shall be payable from the date of filing of the application before the tribunal by the appellant-National Insurance company of truck No. HR 38 C 5655 which was driven by deceased driver Iqbal Khan within two months from the date of this order. The appeal is disposed of as above.