Suryabhan Choudhary vs State of Madhya Pradesh

This Misc. Appeal under Section 173(1) of the Motor Vehicle Act, 1988 has been preferred by the appellant/Insurance Company against the award dated 03.03.2015, passed by the Member, Additional Motor Accident Claims Tribunal, Sidhi, in Claim Case No. MVC No.13/2014, whereby the award of Rs.8,31,908/- has been passed in favour of claimants/respondents No.1 to 8.

The claim of respondent Nos.1 to 8 in brief is that respondent No.1 and 4 to 8 are the wife and children of deceased Umesh Kumar Sahu and respondents No.2 and 3 are his parents. Umesh Kumar was aged about 36 years, who was working as Driver and earns Rs.4000/- per month as salary and Rs.1200/- daily allowances. On 23.08.2007 the deceased Umesh was travelling in a Mini bus bearing registration M.P.53-E/0454 as a passenger and going to Sidhi from this village Nigri. When Bus reaches in Lohjhar Forest area, the Bus driver Ajit Kumar

(Respondent No.10) drove the Bus rashly and negligently and dashed against a Dumper bearing registration No.M.P.-20-G-6666 coming from opposite direction. In the accident Umesh Kumar sustained serious injuries. He was taken to Government Hospital, Sidhi and thereafter shifted to Jabalpur for treatment where he had expired. The police registered an offence against driver of dumper who had absconded after the accident and seized the bus and after investigation a charge-sheet has been filed against him. Respondent No.9 Arun Kumar Singh was the registered owner of the Bus and it was insured with the appellant. It is pleaded by the claimants that the deceased was sole bread winner of the family, claimants are dependent upon him. Rs.4 Lacs were spent in the treatment of deceased. Claimants have no source of income. Therefore, the claimants have filed the petition under Section 166 of the Motor Vehicle Act, 1988 for grant of compensation of Rs.13,26,000/- on account of death of deceased against appellant and respondent Nos. 9 and 10.

In their written statement respondents No.9 and 10 denied the averrment made in the claim petition. It is denied that the vehicle of respondents was involved in the accident. They have admitted that they are the owner and driver of the Bus. In alternate it is pleaded that respondents No.10 was having valid driving license to driver the vehicle. There is no breach of any condition of insurance policy. The accident occurred because of rash and negligent driving of the driver of the dumper. Therefore, respondents are not liable to pay any compensation to claimants.

Appellant Insurance Company has also denied the claim and pleaded that the disputed Bus was not insured with the appellant. In alternative it is averred that the Bus was being driven without valid permit and fitness. Respondent No.10 was not possessing valid driving license to driver the Bus, therefore, there is breach of policy of insurance and appellant is not liable to pay

compensation. The owner, driver and Insurance Company of vehicle dumper are liable to pay compensation. They are necessary party.

The claimants have examined three witnesses in their support whereas respondent No.10 Ajit Kumar has examined himself.

The learned Claim Tribunal on the basis of the pleading of the parties formulated issues and after appreciation oral and documentary evidence led by both the parties, recorded a finding against appellant and owner and driver of the vehicle Bus that the accident took place due to rash and negligent driving of drivers of Bus and dumper. This is a case of composite negligence of both the drivers. It is further held by the Tribunal that it is not proved that the driver of Bus was not having valid driving license at the time of accident, therefore, breach of police of insurance is not proved and owner, driver and Insurance Company of Bus are liable to pay compensation to claimants jointly and severally. Learned Tribunal has passed the impugned award against the appellant and other respondent Nos. 9 and 10.

Feeling aggrieved by the impugned award, the appellant/Insurance Company has filed present appeal under Section 173 of the Motor Vehicle Act, 1988.

It is contended by learned counsel for the appellant that there was an accident between the two vehicles, therefore, the drivers of both vehicles are responsible for the accident. This is the case of contributory negligence and driver, owner and Insurance Company of vehicle "dumper" are necessary party. Therefore, the claim petition is not maintainable on the ground of non-joinder of necessary parties. There is collusion of claimants

between owner and driver of Mini Bus and also dumper in question.

Heard arguments advanced by learned counsel for the parties and perused the record.

In the present case it is duly established by the evidence adduced by both the parties that there was an accident between vehicles Bus and Dumper, who had been collided coming from opposite direction. Respondent no 10 driver of bus (DW-1) has admitted that there was head on collision between the two vehicles. There is no evidence to show that the bus driver had taken due precautions to avoid the accident. The Bus turned turtle after the accident. Thus, it can be presumed that the Bus driver was also rashly and negligently driving the vehicle. Therefore the Tribunal has rightly held that drivers of both vehicles are equally responsible for accident. This is a case of composite negligence of both drivers, not of contributory negligence.

In the case law Khenyei Vs. New India Assurance Company Ltd. and ors. AIR 2015 SC 2261, Hon''ble Apex Court laid down :

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

In view of aforesaid the claimants can claim compensation either from owner, driver and Insurance Company of Bus or can claim compensation from owner, driver and Insurance Company of Dumper. Thus, the claimants are entitled to claim entire

compensation from owner, driver and Insurance Company of Bus alone. The owner, driver and Insurance Company of other vehicle dumper need not be impleaded.

As far as breach of condition of insurance policy is concerned, the burden lies upon Insurance Company to prove it. Insurance Company has adduced no evidence in this regard and did not examine any witness from R.T.O. to prove that at the time of accident, the driver of Bus was not having valid driving license or permit. Although the driver (DW-1) has filed driving licence and permit.

Consequently, I do not find any illegality committed by the Tribunal in awarding the compensation. The quantum of compensation is rightly determined. Therefore, the appeal filed by the Insurance Company fails and is hereby dismissed being devoid of merits. No order as to costs.