IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.69-CII of 2002 in/and FAO No.2120 of 2002 (O&M) Date of decision:01.10.2010 National Insurance Company Limited ....Appellant versus Smt. Ramesh Rani and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. L.M.Suri, Senior Advocate, with Mr. Neeraj Khanna, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The Insurance Company is in appeal challenging the liability on the ground that consistent with the finding by the Tribunal that the accident had been contributed by the driver of the car in which the deceased and the injured were travelling to an extent of 45%, it must have directed the recovery only against the owner of the car and its insurer and could not have directed the insurer of the truck to pay the entire amount and provide to it a right of recovery against the insurer and the owner of the car. There exists a substantial difference between contributory negligence and composite negligence. The expressions which are commonly used interchangeably have different connotations. This distinction was brought out by the decision of the Hon'ble Supreme Cross Objection No.69-CII of 2002 in/and FAO No.2120 of 2002 (O&M) - 2 - Court in T.O. Anthony Versus Karvarnah and others-2008 (3) SCC 348. If the claim had been at the instance of either the driver or owner of the vehicle which had contributed to the accident, then it could be stated that it would be a case of contributory negligence and there could be a partial abatement of claim or a right of recovery only against its own insurer depending on the terms of policy. However, if the claim is at the instance of a passenger in the car and the driver of the car had been negligent to any portion, it is merely a case of composite negligence in the perception of the passenger or his representative. If there is a composite negligence, then right of recovery is possible for the claimant or his representative against anyone of the tort feasors. This issue has been considered at length with reference to all case laws by this Court in The Oriental Insurance Company Limited Versus Smt. Meena Kumari and others in FAO No.4246 of 2006, decided on 24.08.2010. 2. The right of recovery in the manner awarded by the Tribunal is therefore justified. It appears that the owner of the car himself was not made a party. The right will therefore survive to the insurer in independent proceedings against the owner of the car. The appeal is dismissed but subject to the right as granted aforesaid. 3. There is no representation for the cross appellant and it is dismissed for non-prosecution. (K.KANNAN) JUDGE 01.10.2010 sanjeev