High Court
Facts
( 1 ) fa746.11IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 746 OF 2011WITHCIVIL APPLICATION NO. 5025 OF 2011United India Insurance Company Ltd.,..AppellantThrough its Divisional Manager,[original Res.Seven Hills, Jalna Road, Aurangabad.No.4]Versus1)Sandu s/o. Tukaram Jadhav..RespondentsAge. 46 years, Occ. Service &[Resp.No.1 -Vegetable Wholesale Merchant,ori.claimant,R/o. Anva,Taluka Bhokardhan,Res.2 to 4 -District Jalna.Ori. Res.No.1 to 3]2)Balaji s/o. Nivrutti KhandebharadAge. Major, Occ. Driver & Owner,R/o. Kumbhari, Taluka Devalgaonraja,District Buldhana.3)The New India Assurance CompanyThrough its Senior Divisional Manager,Division Office, Adalat Road, Aurangabad.4)Santosh s/o. Kondiba SapkalAge. Major, Occ. Owner,R/o. Anva, Taluka Bhokardan,District Jalna.WITH ( 2 ) fa746.11FIRST APPEAL NO. 2186 OF 2012WITHCIVIL APPLICATION NO. 7588 OF 2011The New India Assurance Co. Ltd...AppellantThrough its Div. Manager. Div. Office,[ori.res. No.2]Adalat Road, AurangabadThrough its authorised signatory,Mr. Sanjiv s/o. Ramrao GaisamudreAge. 51 yrs., Occ. Service, Sr.Div. Manager,New India Assurance Co. Ltd., R/o. Aurangabad.Versus1)Sandu s/o. Tukaram Jadhav..RespondentsAge.47 years, Occ.Service &Merchant[Resp.No.1 -R/o. Anva,Taluka Bhokardhan,& Resp.1,2 &4]District Jalna.2)Balaji s/o. Nivrutti KhandebharadAge. 48, Occ. Driver/Owner,R/o. Kumbhari, Taluka Devalgaonraja,District Buldhana.3)Santosh s/o. Kondiba SapkalAge. 51, Occ. Owner,R/o. Anva, Taluka Bhokardan,District Jalna.4)United India Insurance Co. Ltd.,Through its Sr. Div. Manager,Div. Office, Osmanpura Circle,Aurangabad.Mr. A.G. Kanade, Advocate for appellant in FA No.746/2011 (through VC)Mr.D.P. Deshpande, Advocate for appellant in FA No.2186/2012 (through VC).Mr. S.K.Shirse h/f. Mr. P.F. Patni, Advocate for respondent No.1.Mr. L.S. Shaikh h/f. Mr. V.P. Golewar, Advocate for respondent No.2.Mr. Shubham K. Shinde h/f. Mr. R.V. Gore, Advocate for respondent No.3. ( 3 ) fa746.11CORAM:KISHORE C. SANT, J.RESERVED ON:14.07.2025PRONOUNCED ON:29.09.2025JUDGMENT :-01.These appeals are filed by the Insurance Companieschallenging a judgment and award passed by the learned Motor AccidentClaims Tribunal, Aurangabad, in MACP No. 727 of 2007. By way of theimpugned judgment and award, the learned Member of the Tribunal hasallowed claim petition filed by present respondent No.1 directing theinsurance company to pay Rs. 9,06,800/- towards compensationincluding ‘no fault liability’ with interest @ 10% p.a. from the date ofapplication. Along with allied directions, it was further directed that if theamount is not deposited within one month from the date of the order, theamount will carry interest @ 12% p.a. 02.Facts giving rise in short are that the claimant was travellingin his Tata 407 truck bearing No. MH-21-5492. While returning fromAkola near Dargadwadi Shivar on Devalgaonraja to Chikhali road,suddenly Tata Truck No. MH-21-6423 gave dash to their vehicle. Saidvehicle was driven by respondent – Balaji. In First Appeal No. 746 of ( 4 ) fa746.112011 respondent No.1 is original claimant, respondent No.2 is originalrespondent No.1 – owner of other vehicle, respondent No.3 is originalrespondent No.2, respondent No.4 is original respondent No.3. After theaccident, the claimant was removed from the vehicle by police and wasadmitted to the hospital at Primary Health Center, Devalgaonraja. Fromthere, he was shifted to Civil Hospital at Jalna. Thereafter, he was shiftedto Vargantvar Hospital, Aurangabad. He was there for 12 days. In theaccident he suffered 100% loss of earning capacity. The claimant,therefore, filed claim petition in Aurangabad. The claimant claimed Rs.10 lakhs towards compensation. It is his case that he was earning Rs. 2lakhs per year from doing the business of sale of vegetable.03.The learned Tribunal held that the driver of truck No. MH-21-6423 i.e. driven by respondent No.1 and the claimant suffered grievousinjuries. It is held that the driver of second vehicle was rash andnegligent. It is further held that the claimant is entitled to receivecompensation. So far as loss of earning capacity is concerned, thelearned Tribunal held that the claimant would be entitled to receivecompensation. The learned Tribunal held that the disability suffered bythe claimant is to the extent of 90%. It is held that the annual income ofthe claimant is Rs. 54,000/- and considering the age, multiplier of 13 is ( 5 ) fa746.11applied. In addition to that Rs. 2,75,000/- is awarded towards medicalexpenses and granted total amount of Rs. 9,06,800/-.04.It is case of the insurance company that the accident tookplace between two vehicle. The respondent-claimant was travelling invehicle bearing No. MH-21-5419. The claimant was also negligent andtherefore the liability would come on the insurance company of thevehicle of the claimant. In the first vehicle the claimant was travelling asgratuitous passenger. In view of that risk is not covered for breach ofcondition and therefore the appellant is not liable to pay compensation.The Tribunal has wrongly granted the amount as jointly and severally. Onmerits he submits that the Doctor who gave certificate of disability is notthe Doctor who treated the patient and therefore evidence of such Doctorought to have been discarded. The age of the claimant is shown to be 60– 65 years on the medical papers. Therefore, multiplier of 13 is wronglyapplied. 05.First Appeal No. 2186 of 2012 is filed by the New IndiaAssurance Co. Ltd., the insurer of truck bearing No. MH-21-5492.Learned Advocate Mr. Deshpande for the appellant argued that from theevidence of the claimant and especially from the cross-examination, it is ( 6 ) fa746.11seen that he was sitting at the rear side of the vehicle and thereforecould not see the accident. A criminal complaint was filed only againstowner of the vehicle bearing No. MH-21-5492. With the help of judgmentof the Hon’ble Supreme Court in the case of Oriental Insurance Co.Ltd. Vs. Premlata Shukla and Ors., (2007) 13 SCC 476, he submitsthat no liability would come on the New India Assurance Co. Ltd. Not asingle person from vehicle No. MH-21-6423 is examined by the claimant.If the entire FIR is seen, it is clear that it is the owner of vehicle No. MH-21-5492 is liable. He also relied upon judgment in the case of LachooRam and Ors. Vs. Himachal Road Transport Corporation, (2014)13 SCC 254. He thus submits that liability at the most, would be on thevehicle in which the claimant was travelling. There is no fault of vehicleNo. MH-21-6423 proved. No medical bills are produced. He submits thatin no case the liability would come on the New India Assurance Co. Ltd.06.Learned Advocate Mr. Shirse h/f. Mr. P.F.Patni for originalclaimant vehemently submits that this is clearly a case of compositenegligence. The claimant was not driving the vehicle. He relied uponcross of the claimant to submit that so far as age is concerned, there isno suggestion about the age of the claimant and about disability sufferedby him. He has denied the suggestion about negligence on the part of ( 7 ) fa746.11the vehicle in which the claimant was travelling. The learned Judge hasrightly considered all the factors. The deceased is suffering fromparaplegia and for that now there is no treatment available. 90%disability suffered by the claimant is of permanent nature. He thussubmits that learned Tribunal has rightly passed the order and opposesthe appeal.07.Heard learned Advocates for the parties. The claimant hasexamined three witnesses in support of his case. He examined himselfas PW-1, PW-2 is Punjaji Pandurang Sonavane a shop-owner of pesticidesshop. PW-3 is Dr. Jaiswal, who issued certificate of disability. He provedinjury certificate showing disability, FIR, Medical Bills, Salary Certificateetc. The respondents have not produced any evidence as such. Neitherthey have examined any witness.08.PW-1 in his evidence has stated that he along with threeother persons were travelling in MH-21-5492. They met with an accidentwith vehicle No. MH-21-6423. On the date of accident, he receivedinjuries. He was taken to hospital. He spent an amount of Rs.2,75,000/- for hospitalization, medication etc. He thus prayscompensation of Rs. 35,75,000/-. He proved insurance policy etc. In ( 8 ) fa746.11the cross by New India Assurance Co., it has come on record that he wassitting at the rear side of the vehicle. It was not fault of the truck driverin which he was travelling. It is the driver of another vehicle, who wasresponsible for the accident. Except suggestion, there is nothing in thecross-examination. In the cross by respondent - United India InsuranceCo. it is taken that three persons were travelling in tempo includingdriver. There was no goods in the tempo and it was empty.09.PW-2 Punjaji Sonawane stated that he knows the claimant,who was working in his shop. He used to pay salary of Rs. 4500/- permonth. He proved salary certificate Exh.60. He also stated that fromthe date of the accident, complainant has not come to the shop.10.PW-3 Parmeshwar Jaiswal, an Orthopedic Surgeon, statedthat the claimant sustained 90% disability and there is no possibility ofany improvement in the condition of patient. He proved Exh.62. In thecross-examination by respondent No.2, it is only asked that the claimanthas not taken any treatment from him. He has not taken any x-ray. Ithas come in the cross that he verified the x-ray of the patient. By theother insurance company he was not cross-examined and the cross byrespondent No.2 was adopted. ( 9 ) fa746.1111.In the case of Andhra Pradesh State Road TransportCorporation and Anr. Vs. K. Hemlatha and Ors., (2008) 6 SCC 767,the Hon’ble Apex Court was considering the case of contributorynegligence and computation of amount of compensation. It is held thatcomposite negligence is a negligence on the part of two or more persons.Injury to a person is result of negligence on the part of such wrongdoers. In such case, it is called as composite negligence and held that insuch case, all persons are jointly and severally liable for payment to theinjured of the entire damages. In such case, it is injured who has achoice to proceed against all or any of them. It is not for the claimant toprove the accident and liability of each wrong-doer separately.12.Reliance is placed upon judgment in the case of T.O.Anthony Vs. Karvarnan and Ors., (2008) 3 SCC 748. In the saidcase, the accident was head-on collision of bus of Kerala State TransportCorporation with a private bus, in which the appellant received a facture.The Hon’ble Supreme Court in that case held that the accident occurreddue to contributory and composite negligence of bus drivers of both thevehicles. The liability was fasten to 50% each and deducted 50% of theamount for appellant’s negligence. The Hon’ble Apex Court did not
Legal Reasoning
( 10 ) fa746.11disturb the finding regarding negligence and enhanced compensation. Itis held that the composite negligence and contributory negligence are notone and same. Composite negligence is when a person receives injurywhere two or more other persons are involved. Contributory negligenceis the negligence where claimant himself is also liable for the accident. Itis only in the cases where the claimant himself is found to be responsibleis a case of contributory negligence. 13.So far as judgment in the case of Khenyei Vs. New IndiaAssurance Co. Ltd. & Ors., (2015) 9 SCC 273 is concerned, theHon’ble Supreme Court held that the claimant is entitled to sue any ofthe tortfeasor or all of them for recovery of compensation. He need notprove or establish the liability of each of them separately and he can sueany one of them or all of them.14.In the case of Premlata Shukla (supra) it is held that thedocument once proved needs to be read in its entirety. Only someportion of the document cannot be relied upon by ignoring any provision.There is no dispute about the same. 15.In the case of Lachoo Ram (supra), the Hon’ble Supreme ( 11 ) fa746.11Court dealt with the appeals filed by the claimants aggrieved by thejudgment and order by the High Court reversing the finding given by theMotor Accident Claims Tribunal and set aside the award to some extent.It is held that mere involvement of the bus in the accident cannot makeowner liable to pay compensation unless it is established on record byproducing material that the accident is caused by rash and negligent actof the driver. In that case the bus was standing at the red light and afterstarting from traffic signal, it stopped almost 100 -150 yards away fromGurudwara. It is held that the bus could not have started in high speed.The accident occurred admittedly on narrow road. It was brought onrecord that the bus driver had not given signal to the motorcyclist toovertake it. In that case the witness could not see the actual incident.The motor cyclist on an attempt to overtake the bus had crushed. Thewitness only heard sound of crush. In that case, it was not a case thatdriver did not take any sudden turn for proceeding forward from trafficsignal that he moved the bus right side in sudden manner.16.In the present case, it has already come on record that theclaimant was not driving the vehicle. He was sitting at the rear side.Thus, there is no question of contributory negligence. Present case isthus a clear case of composite negligence. This Court does not find any
Decision
( 12 ) fa746.11reason calling for interference at the hands of this Court. Consequently,both the first appeals stand dismissed with no order as to costs.17.In view of dismissal of the first appeals, connected civilapplications do not survive and are accordingly disposed off.[KISHORE C. SANT, J.] snk/2025/Sep25/fa746.11