Miscellaneous Appeal No. 392 of 2012 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.392 of 2012 ====================================================== Dewanti Kuer W/O Late Dinanath Singh R/O Village- Duari, P.S.- Karakat (Gorari), P.O.- Munji, District- Rohtas Versus 1. Sri Jitendra Ojha S/O Sri Deomuni Ojha R/O Village, P.O. And P.S.- Rajpur, District- Rohtas 2. Branch Manager Oriental Insurance Company Limited, Branch Office .... .... Appellant/s - Sasaram (Rohtas) 3. Vineet Kumar Singh S/O Late Dinanth Singh R/O Village- Duari, P.S.- Karakat ( Gorari), P.O.- Munji, District- Rohtas 4. Shakti Kumar Singh S/O Late Dinanth Singh R/O Village- Duari, P.S.- Karakat ( Gorari), P.O.- Munji, District- Rohtas 5. Sweta Kumari D/O Late Dinanth Singh R/O Village- Duari, P.S.- Karakat ( Gorari), P.O.- Munji, District- Rohtas .... .... Respondent/s ====================================================== Appearance: For the Appellant/s and Respondent/s 3 to 5 : Mr. Bajarangi Lal For Respondent No. 1 : Mr. Bishnu Kant Dubey For Respondent No. 2 : Mr. Ashok Priyadarshi ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 04. 13-08-2013 This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 03.02.2012/23.03.2012 passed by learned 5th Additional District Judge-cum-Motor Vehicles Accident Claim Tribunal, Rohtas in Motor Vehicle Claim Case No. 107 of 1999, whereby the learned tribunal even while upholding the claim of the claimants and finding them entitled to a compensation of Rs. 5,21,500/- has restricted the payment by half to be made by the insurer respondent no. 2, the Oriental Insurance Company while issuing
Facts
Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 2 direction to the claimants to recover the balance of Rs. 2,60,750/- from the owner of the Jeep bearing Registration No. BR- 24P- 5957 in which the victim was travelling. The facts of the case briefly stated is that the deceased husband of the claimant-appellant was travelling from village Bairi in District-Balia within the state of Uttar Pradesh and when the Jeep reached the bridge on the Sasaram-Arrah highway, it was dashed against by a Bolero bearing Registration No. BR-24P-1532 and as a consequence of the accident the driver of the Jeep as well as the husband of the claimant who is the appellant before this Court died. Setting up a case of rash and negligent driving by the driver of the Bolero vehicle, the claim case was instituted and the tribunal even while upholding the claim and finding the claimant entitled to a compensation of Rs. 5,21,500/- together with interest @ 7 per cent from the date of filing of the claim case, issued directions to the opposite party no. 2, the Oriental Insurance Company to make payment of half of the compensation amount i.e. Rs. 2,60,750/- after reducing the amount of interim award of Rs. 50,000/- paid by them under Section 140 of the Act together with interest as stipulated hereinabove while reserving liberty for the claimant to realize the balance amount from the owner/insurer of the Jeep. The conclusion drawn by the tribunal is following Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 3 the principles of contributory negligence as according to the tribunal, the pleadings and evidence on record as advanced by the contesting parties reflected contributory negligence not only by the driver of the offending Bolero vehicle but also the Jeep in which the victim was travelling. It is not in contest that the opposite party no. 2 i.e. the Oriental Insurance Company has made payment to the claimant in terms of the award. The claimant being aggrieved by that part of the award whereby she has been required to realize the balance compensation amount from the owner and insurer of the Jeep in which her deceased husband was
Legal Reasoning
travelling, is before this Court in this appeal. I have heard Mr. Bajarangi Lal, learned counsel appearing on behalf of the appellant and respondent nos. 3 to 5 who are the children of the deceased and the appellant, Mr. Ashok Priyadarshi appearing on behalf of the Oriental Insurance Company and Mr. Bishnu Kant Dubey for the owner of the Bolero vehicle i.e. respondent no. 1 herein. Mr. Lal while questioning the award insofar as it has required the claimant to realize the balance amount from the owner/insurer of the Jeep in which the deceased husband of the claimant was travelling has taken me through the award to submit that even when the evidence on record did not reflect any rash or Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 4 negligent driving by the driver of the Jeep in which the deceased was travelling, the tribunal simply on the objection raised by the insurance company and the owner of the Bolero vehicle and taking into consideration that there was a head on collusion between the two vehicles, has recorded a finding of contributory negligence. It is submitted that the tribunal finding fault with the claimant in not arraigning the owner and insurer of the Jeep in the claim case even while upholding the claim, has required the claimant to realize the balance amount from the owner and insurer of the Jeep. It is the contention of Mr. Lal that even if the vehicles had a head on collusion, the claim set up did not fall within the purview of a contributory negligence so as to require the claimant to realize the balance amount from the owner and the insurer of the Jeep in which the deceased was travelling, rather the deceased being a passenger in the Jeep which met with an accident due to rash and negligent driving of the Bolero, the case was that of composite negligence and in which circumstance it was the option of the claimant to realize the compensation amount either jointly or severally from the owner/ insurer of either of the two vehicles. Mr. Lal in support of his submission has relied upon the following judgments: (i) (2008) 3 SCC 748 (T.O. Anthony vs. Karvarnan), Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 5 paragraph 5 to 7 (ii) A.I.R. 2008 SC 2405 (Sudhir Kumar Rana vs. Surinder Singh & Ors.), paragraph 6 and 7. The argument of Mr. Lal has been contested by Mr. Priyadarshi and Mr. Dubey, appearing for the insurance company and the owner respectively. Mr. Priyadarshi in his endeavour to support the finding of the tribunal referred to the provisions of Rule 226(5) of the Motors Vehicle Rules, 1992 framed under the Act to submit that an F.I.R. is a relevant piece of document which has to accompany a claim case. Mr. Priyadarshi next with reference to the provisions of Section 158(6) of the Act submitted that no sooner any information regarding an accident is received by a Police Officer and a final report thereof is prepared, a copy of the said report is required to be forwarded to the claims tribunal as well as the insurer. Mr. Priyadarshi with reference to the copy of the F.I.R. which was led as Exhibit-1 and the final form which was led as Exhibit-2, has submitted that the conclusion drawn by the tribunal is in the light of the report of the investigating agency who has confirmed the accident to be a case of contributory negligence by the drivers of the two vehicles. Mr. Priyadarshi thus with reference to the F.I.R. and the charge sheet submitted that even when the Police has confirmed contributory negligence by the driver of the ill fated Jeep in which the deceased was Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 6 travelling, the claimant has malafidely not arraigned the owner or the insurer as a party for the reasons best known. Mr. Priyadarshi with reference to an unreported judgment of this Court passed in Misc. Appeal No. 265 of 2009 and Misc. Appeal No. 708 of 2011, sought to canvass that a Bench of this Court has held that if there has been a concealment of material fact by the claimant or their witnesses, the same would be sufficient to disentitle them from the claim. He submits that since in the present case there is a positive concealment by the claimant as regarding the name of the owner of the Jeep, hence it would amount to suppression of material fact by the claimant thus disentitling her from the claim. He further submits that the interest of the claimant has been safeguarded by the tribunal when it has reserved liberty for the claimant to realize the balance amount from the owner of the ill fated Jeep and thus the claimant is not remediless. Mr. Priyadarshi in support of his submission has also relied upon a Bench decision of this Court reported in 1997(1) PLJR 270 (United India Insurance Company Ltd. vs. Shila Devi). Mr. Dubey appearing for the owner has supported the submission advanced by Mr. Priyadarshi to contest the claim. I have heard learned counsel for the parties and I have perused the material on record and the award. The F.I.R. which Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 7 has been instituted on the self statement of the S.H.O. after making a spot enquiry at the place of accident and attributes negligence on the part of the driver of both the vehicles. The same opinion also finds mention in the final form. In fact even amongst the witnesses led by the claimant, the witness no. 3 has stated that the accident had occurred by the negligence of both the drivers. On the other hand, the eye witness account of the witness nos. 2 and 4 reflects that it was the rash and negligent driving by the driver of the Bolero vehicle which resulted in the accident. Thus there are evidence on either side, some supporting contributory negligence on the part of the driver of the two vehicles while others attributing the same to the driver of the Bolero vehicle. It is also an admitted position that no oral or documentary evidence was led either by the insurance company or the owner before the tribunal. The tribunal on the basis of the documentary as well as oral evidence was of the opinion that it was a case of contributory negligence. The moment the accident would come into the category of the contributory negligence it is but obvious that the compensation has to be divided between the vehicles involved in the accident in the proportion of negligence so attributed. But the issue which as been raised by Mr. Lal on the strength of the judgment of the Supreme Court is whether the present case at all Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 8 would fall within the category of contributory negligence. Paragraph- 5 to 7 of the judgment rendered in the case of T.O. Anthony (supra) explains the distinction between a case of „Composite Negligence‟ and „Contributory Negligence‟ and would be relevant for the matter in issue: “5. 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 vehicles, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 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 Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 9 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 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. 7. 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 Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 10 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.” The judgment in paragraph 6 manifestly holds that where a person is injured as a result of negligence on the part of two or more wrongdoers without there being any fault on his part it would be a case of composite negligence and in such circumstance the victim would be entitled to proceed for payment of compensation against each of the wrongdoers either jointly or severally. The choice of proceeding against any or all of them would in such cases, rest on the claimant. It has further been held that where a person suffers the injury partly due to his own negligence while partly due to negligence of others, it would be a case of contributory negligence and the damages recoverable would stand reduced to the proportion of the contributory negligence set up against the parties. The judgment passed in the case of T.O. Anthony (supra) was noticed and followed in a subsequent judgment of Sudhir Kumar Rana (supra). Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 11 The legal position explained by the Supreme Court with specific reference to „composite negligence‟ and „contributory negligence‟, leaves no room for any confusion that the claim of the appellant did not fall within the category of contributory negligence, since the deceased husband of the claimant was in no manner responsible for the accident in question. Thus even if the argument of Mr. Priyadarshi regarding negligence by both drivers is accepted yet at best it can be held to be a case of composite negligence and in view of the judgment of T.O. Anthony (supra), the option would lie with the claimant either to proceed against the owner/insurer of one vehicle or both. That the claimant has chosen to proceed against the owner and insurer of the Bolero vehicle, no legal infirmity can be found therein nor was there any necessity to also implead the owner and the insurer of the Jeep. The order of the tribunal requiring the insurance company- opposite party no. 2 to pay only 50 per cent of the claim while requiring the appellant to realize the balance from the owner and insurer of the ill fated Jeep, is on a misconception of the definition of a contributory negligence. For the reasons aforesaid, the impugned judgment and award insofar as it requires the claimant to realize the balance amount from the owner/insurer of the Jeep is set aside and as a Patna High Court MA No.392 of 2012 (4) dt.13-08-2013 12 consequence whereof it would be the opposite party no. 2 against whom the claimant has chosen to proceed, who would now make payment of the balance amount together with interest as stipulated in the award but considering the circumstance that the delay in disposal of the case in no manner would be attributable to the insurance company, the interest shall be payable from the date of the award until the date of payment. S.Sb/- (Jyoti Saran, J)