R. Balanarasamma and Others vs K. Ramakrishna Reddy and Another

B.K. Somasekhara, J.—The claimants in O.P. No. 147/89 before the Motor Accidents Claims Tribunal, Ranga Reddy District have questioned the award of the Tribunal dated 19-3-1990 wherein the Tribunal while conceding the claim in favour of the claimants to the extent of 50% of Rs. 1,30,800/- (Rs. 65,400/-) held that the accident was due to the negligence of the drivers of the two lorries ADQ 7155 and ATR 600 and not mainly due to the negligence of the driver of the lorry ADQ 7155. The 1st respondent is the owner of the lorry ADQ 7155 and the 2nd respondent js its insurer. The claim was lodged u/s 110-A of the M.V. Act, 1939 (for short the Act) for recovery of Rs. 2,00,000/- by way of compensation.

The claimant No. 1 is the wife, claimants 2 to 6 are the children and claimant No. 7 is the mother of the deceased Sathaiah, who died in the motor vehicle accident that occurred on 4-12-1988 while he was travelling in the lorry ATR 600 due to the alleged negligence of the driver of the lorry ADQ 7155. During the enquiry, the Tribunal found that the accident was due to the negligence of the drivers of both the lorries. Having found that the age of the deceased was 35 years when he died and contribution to the family was Rs. 600/- per month, with the multiplier of 14 and multiplicand of Rs. 7,200/- arrived at Rs. 1,08,000/- towards loss of contribution to the family, added Rs. 20,000/- towards non-pecuniary damages, Rs. 3,000/- towards loss of consortium to claimant No. 1 and Rs. 2,000/- towards funeral and incidental expenses and in view of the composite negligence of both the drivers apportioned it 50% each to them and consequently reduced the compensation to 50% i.e., Rs. 65,400/-.

Mr. V.V. Ramanatham, the learned Counsel for the appellants/claimants has raised three broad contentions, (1) when the finding of the Tribunal is that the accident was due to the composite negligence of drivers of both the vehicles, the claimants were entitled to proceed against one or both the drivers, owners and the insurers of the vehicles and there could have been no scope for apportioning the negligence between the drivers; (2) the amount of compensation awarded is not adequate having due regard to the evidence before the Tribunal, and (3) even assuming that the negligence could have been apportioned between the two drivers, the Tribunal was bound to pa(sic) an award against the driver, owner and insurer of the other vehicle whereby the claimants would have exhausted the remedy in accordance with Section 96(2) of the Act before or during the execution proceedings.

Mr. Anand Mohan Rao, the learned Counsel for the 2nd respondent/ insurer tried to repel all the above contentions and in particular regarding the last contention, it is his submission that in view of the deceased himself being the owner of the other lorry and his own driver having caused the accident, no such relief is available against the other insurer and even assuming that such a remedy may be available as against the other insurance company, there is no need to interfere with the award in so far as apportioning the negligence as against the driver of the lorry involved in the accident is concerned and further limiting the liability of the insurer to 50% of the total compensation is justified and since the insurer of the other lorry is not known neither the Tribunal nor this Court can pass an award in abstantee which in effect becomes a paper award without capable of being execution or enforcement.

Having due regard to the inter-related concept of the contentions supra, the question as to the adequacy of the compensation awarded by the Tribunal could be the first question for determination. The finding that the deceased was aged about 35 years at the relevant time needs no probe as the Tribunal has rightly accepted it with the evidence on record. It is in the testimony of claimant No. 1 that the deceased was a contractor earning Rs. 1,800/- per day whereas in the claim petition itself his income was shown as Rs. 2,500/- per month. The deceased being a contractor investing so much of money on the lorry and business of transportation could not have managed it without maintaining any accounts like vouchers, Income Tax returns etc. In the absence of that, the Tribunal could have accepted the evidence of income as above. Even then the claimants estopped themselves from saying that the income was Rs. 2,500/- per month regarding the deceased. It was also found that the lorry was under hire purchase agreement and rightly it was pointed out that some amount of the income ought to have been paid towards hire purchase agreement. Moreover, there were as many as eight persons in the family of the deceased including himself. The Tribunal while fixing Rs. 600/- per month towards contribution of the deceased to the family, did not give reasons as to how that could be fixed. To maintain eight persons in the family including himself, the deceased was bound to spend atleast Rs. 100/- to Rs. 200/- per head even sparing some amount from Rs. 2,500/- per month towards hire purchase loan or any other incidental expenses. In that view of the matter, the amount available for the use of the family members could not have been less than Rs. 1,000/-. Because he was one of the beneficiaries out of the contribution, deducting about l/5th from the same, the contribution to the family could have been Rs. 800/-. As per the latest pronouncement of the Supreme Court in U.P.S.R.T.C. v. Trilok Chandra and Ors. 1996 (4) SC 479 : 1996 (2) ALT 36 , the maximum multiplier for a person aged 20 should be 16 and thus the multiplier in this case should be 13 and not 14. Therefore, with the multiplicand of Rs. 9,600/- and multiplier of 13, the loss of dependency ought to be Rs. 1,24,800/-. To this amount the conventional amount towards loss of expectation of life or loss of future happy life of Rs. 10,000/- should be added. The amount of Rs. 2,000/- awarded towards consortium to claimant No. 1 is too meagre and even as per the settled law in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , it goes upto Rs. 15,000/-. Having due regard to the age of the deceased and claimant No. 1 the loss of consortium in this case ought to be Rs. 10,000/-. The incidental expenses at Rs. 3,000/- are rightly awarded by the Tribunal and the total of all this would escalate the amount of compensation to Rs. 1,47,800/- and to round it off Rs. 1,48,000/-. To this extent, the amount under the award can be escalated.

The Tribunal has found from the evidence that the deceased was travelling in his own lorry ATR 600 and his driver was driving the vehicle. It is found from the evidence that the lorry ADQ 7155 coming from the opposite direction dashed against the lorry in which the deceased was travelling. No FIR was filed against the driver of the lorry of the deceased, perhaps, due to the reason that he was an employee of the deceased himself. At any rate, to show that the driver of the lorry ATR. 600 was by himself or equally negligent in causing the accident, no evidence was made available by the claimants themselves. On the otherhand, Ex.A-1, the FIR was filed against the driver of the lorry ADQ 7155 of which the 1st respondent is the owner. The claimant No. 1 or any witness did not even spell out that the driver of the lorry ATR 600 was negligent to a particular extent or that the driver of the lorry No. ADQ 7155 was by himself totally negligent. On the other hand, it is found from the testimony of P.W.1 and the contents of Ex.A-1 that the accident occurred due to the rash and negligent driving on the part of both the drivers of the vehicles involved in the accident. That was the clinching material for the Tribunal to hold that the accident was due to the negligence of the drivers of both the lorries. In other words, from the very admission and the materials, it was nothing but composite negligence of the drivers of both the lorries which resulted in the accident. The finding to that effect was thus justifiably recorded which requires no interference by this Court. The Tribunal has given adequate and convincing reasons in support of such a finding. In such a situation, as rightly held by the Supreme Court in Subramanya Iyer v. Kunhi Kuttan Nair 1970 ACJ 110, the appellate Court should be slow in disturbing such a finding of the Court below when all the facts are taken into consideration while recording the finding.

Mr. V.V. Ramanatham, the learned Counsel is right in postulating that this is a case of composite negligence when the drivers of both the lorries were responsible for the cause of the accident. But his contention that it cannot be apportioned among the drivers of such vehicles appear to be against the settled law. His reliance on the two pronouncements in National Insurance Co. Ltd. Vs. Sivasankara Pillay and Others, and Karnataka State Road Transport Corporation Vs. Reny Mammen, has only produced the result in statement of law that where there is composite negligence, each driver is equally responsible in regard to the accident and they would be joint tort feasors and to further confirm the law it can be stated with certainity that in such cases, the claimants may be entitled to proceed against one or both of them. (1985 ACJ 280). The second part of the statement of law does not mean that the claimants, by proceeding against one of them could get the remedy of the claim totally. On the other hand in Remy Mammen''s case5, the High Court of Karnataka for justifiable reasons has authoritatively held that in such a situation each of the drivers, owners of the vehicles are separate and distinct in liability for compensation and it must be apportioned in the proportion of the respective negligence of their drivers. It has been explained therein that they are the tort feasors individually but not joint tort feasors but it may involve sometimes even several tort feasors each answerable for damages to the extent of their negligence. In Sivasankara Pillay''s case (supra) also agreeing with the view of the Karnataka High Court in the decision supra, it was explained that there was neither any concert nor any common design between the two drivers and they are not joint tort feasors but individually holding the liability as tort feasers for the purpose of culpability in the apportionment of liability. That is what the Tribunal has correctly done. Mr. V.V. Ramanatham, is no doubt correct in postulating that there is no material to apportion the negligence at 50% each. But his contention cuts at the root of his own contention. The materials on record do not provide definite basis to apportion the liability less or more than what was fixed by the Tribunal. The materials were not clear as to who was more aggressive in causing the accident. In such a situation, taking the due deference in the meaning of ''composite negligence'' the Tribunal justifiably apportioned it at 50% and this Court finds no error in that regard.

In so far as the award passed against the respondents to the extent of 50% out of the total amount of compensation is concerned, there cannot be any doubt or dispute. Even the learned Standing Counsel for the 2nd respondent/insurer is also in total agreement with such a situation having due regard to the fact that the respondents have not challenged the award. But Mr. V.V. Ramanatham, the learned Advocate, has gone further in postulating the legal position that in the first instance, if we examine the provisions of the Act relating to the claim petitions before the Tribunal, the driver and the insurer are not strictly necessary parties and in particular the insurer would be in the position of a Judgment-Debtor, the moment an award is passed, in view of clear expressions in Section 96(1) of the Act and therefore there was no difficulty for the Tribunal to pass the award against the insurer of the other lorry ATR 600 also leaving open the remedy for the claimants to exhaust in accordance with law. It is true that neither Section 110-A nor Section 92-A muchless Sections 95 and 96 of the Act contemplate that an insurer is a necessary party to such proceedings. However, by virtue of Section 110-B(2) of the Act, the Tribunal is bound to pass an award fixing the extent of liability of the owner and the insurer in regard to the vehicle. Rule 517 of the A.P.M.V. Rules also contemplates that where an application is not dismissed in accordance with Rule 516, the Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer a copy of the application together with a notice of the date on which it will hear the application and may call upon the parties to produce on that day any evidence which they may wish to tender. Strangely enough, none of these provisions contemplated that neither the owner nor the insurer should be made as parties to the claim petition. But at the same time, the law appears to be certain that no award shall be passed without notice either to the owner or the insurer of the vehicle involved in the accident, but not the driver. One more serious question arises that in such a situation whether the insurer can be considered to be a necessary party to the proceedings. A careful examination of Section 96(1) and (2) of the Act makes it patently clear that the insurer need not be a necessary party to the claim petition. A repetition of these two provisions would be useful:

"96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks: (1) If, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of the decree, any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor in respect of the liability.

(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action of any of the following grounds, namely:

(a) xxxx xxxx xxxx (b) that there has been a breach of specified condition of the policy, being one of the following conditions, namely:

(i) xxxx xxxx xxxx (a) to (d)

The tense in which Section 96(1) is drafted shows that when once an award is passed, the status of the insurer is that of a judgment-debtor. Such a legal position has been declared by the Supreme Court in Sohan Lal Passi v. P. Sesh Reddy (1996) 5 SCC 21 and to repeat the expressions of the Supreme Court-

"....... The bar u/s 96(2)(b)(ii) on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licenced then only that clause shall be attracted. The expression ''breach'' occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act"

(emphasis applied)

Such expressions also clarify the effect of Section 96(2) of the Act about the right of the insurer to get the notice of the prdceedings to have the right to defend such an award in accordance with the grounds available in Section 96(2)(b)(i)(a) to (d) of the Act and not otherwise. The emphasis in Sub-clause (2) of Section 96 is that such a notice can be given either during the proceedings u/s 110-A of the Act before the Judgment is pronounced resulting in the award or even thereafter before execution, provided the execution is stayed pending the appeal. Therefore, it can be concluded that the insurer is not always a necessary party to the claim petition u/s 110-A of the Act, but it is the duty of the Tribunal to decide the rights and liabilities of the parties including the insurer either during the proceedings by following the prescribed procedure or after the proceedings viz., after the award is passed and the insurer is entitled to defend such an award as per the defences available u/s 96(2)(b)(i)(a) to (d) of the Act even in the execution proceedings. Barring that, there is no impediment for passing the award even against the abstantee insurer of the vehicle where law will take its own course in accordance with the provisions stated above. If that is the only scope of passing an award against the insurer of the lorry ATR 600, there was no difficulty. But there are two hurdles to be got over by the claimants before doing that viz., (1) The driver of the deceased himself being equally responsible in causing the accident apportioned at 50%, whether any award can be passed against the insurer in such a situation? and (2) When the name of the insurer is not known as yet, whether the Tribunal or this Court can think of passing an award against an unknown insurer. At the same time, it must be mentioned that no right can go without remedy (Ubi Jus Vox Remedium) because the claimants have a right against the insurer of the other vehicle which was involved in the accident due to the negligence of its driver and if such a lorry has been insured with some insurer, the remedy of the claimants will be still open against such insurer during the execution proceedings subject to the limitations mentioned in the provisions stated above and that cannot be prevented by the Tribunal or this Court. Therefore, without expressing any opinion as to the questions stated above, it is proper that the enforcement of the award as against such insurer or any other person within the scope of Section 96(1) and (2) and subject to Section 95(2) should be provided in this award only.

Since the amount of compensation which should be awarded in this case ought to be Rs. 1,48,000/-, reducing it by 50% as against the respondents, it should be Rs. 74,000/-.

In the result, the appeal is allowed in part. The award of the Tribunal is modified to the effect that the claimants shall be entitled to recover a sum of Rs. 1,48,000/-, whereby they shall be entitled to recover only Rs. 74,000/ - as against the present respondents with costs of the proceedings and interest at 12% per annum from the date of petition till the date of payment. They shall also be entitled to recover the remaining amount from any other person concerned with the lorry ATR 600 including the insurer in accordance with law and in the light of the observations made above. There shall be no order as to costs in this appeal.