iEFORE THE_HON'BLE HIGH COURT OF CHHATTISGARH AT 3LASPUR M.A.C.NO. '-T ;> f /2010 APPELLANT RESPONDENTS 1. - t-?.^:-'r::/i l-R. ^•-:""^'^.I<^W ^^Ms^5^- ^,-vl i .,2. / 3. //~ P'visfan »WM^ ^Sanjay Shekhar @ Sanju /XBharadwaj, aged about 21 years, S/o Shri Parasram Bharadwa}, R/o Near Bangla Gas Agency, Karbala Road, Bilaspi.iT, TabsU and Distt Bilaspur (CG) VERSUS Bharat Lal Rathore, aged about 43 years, son of Shri Butuga Rathore, R/o Vill. Kosinanda, Bandhwapara, Gasti Chowk, P.S. Chainpa Distt. Janjgir- Cbampa (CG) (Driver of Truck No. CG04 / G-1508) M/s Prakash Industries through the Manager, M/s Prakasb Industries, Tah Champa, Distt. Janjgir-Champa (CG) (Owner of Tmck No. CG 04 / G 1508) Branch Manager, National Insurance Company Ltd. Vyapar Vihar Road, Bflaspur, Distt. Bilaspur (CG) (Insurer of Truck No. CG 04 / G 1508) MEMO OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT.1988 1 HIGH COURT OF CHHATTISGARH : BILASPUR Appellant Respondents Appellant Respondents Appellant Respondents Versus M. A. (CJ Np. 450 pt2010 Basanti Yadalvar Bharat Lal Rathore 8s others M. A. (C) No. 451 of 2010 Sanjay Shekhar @ Satiju Bharadwaj Versus Versus Appellant Respondents Bharat Lal Rathore 8s others M, A.JCL ._452^f2010 Basanti Yadalvar Bharat Lal Rathore & others And M. A. (C| No. 453 of 2010 Basanti Yadalvar 8s another Versus Bharat Lal Rathore 8s others DB: Hon'ble Mr. Justice I. M. Quddusi 8s Hon'ble Mr. Justice G. Minhajuddin Shri Sudhir Kashyap, Advocate for the appellants/claimants. Shri O. P. Agarwal, Advocate for M/s Prakash Industries. Shri G. V. K. Rao, Advocate for the National Insurance Company. None for the respondent-Driver. O^R^DJERJQra!) (Passed on this 21M day of October, 2011) Per I. M. -Quddusi, J. 1. The aforementioned four appeals ( M.A.(C) Nos: 450, 451, 452 and 453 of 2010 ) are being deeided by this common order as they arise from the one and the same accident occurred on 3.10.2007 at about 7-8 p.m. as the Car - Matiz, bearing registration No. M.P.26-G/4468, ^•^ys^r^ f/e^ '^ 11 P%1•^ '^ ^r.__^' .•?' ^. ^^'...^1 •'%-.. '•i.^i'' which was being driven by Sanjay Shekher Bhardwaj, collided with a stationary Truck, bearing registration No. C.G.-04-G/ 1508, because it was parked on the road, unsafely in a negligent manner, without using parking lights and indicators. Brief facts, in nutshell are that on 3.10.2006 at about 7-8 p.m. Yogesh Yadalwar, his wife injured Basanti Yadalwar, their daughter deceased Yashashvi were going from Bilaspur to Raipur by the Car - Matiz, No. M.P. 26-G/4468, which was being driven by the injured Sanjay Shekher Bhardwaj. On the way, near village - Chanderi, ahead Bihari Dhaba, the Car was collided with the Truck No. C.G.-04- G/1508 because that truck was parked on the road unsafely and in a negligent manner, without using parking lights and indicators. In the above accident all the four .persons received grievous injuries, Yogesh Yadalvar and his daughter Yashashvi succumbed to the injuries and other two persons namely Basanti Yadalvar and driver Sanjay Shekher Bhardwaj got permanent disability. Injured/claimant Basanti Yadalvar filed Claim Case No. 47/2009 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 6,56,000/-, wherein learned Additional Motor Accident Claiins Tribunal, Bilaspur by the impugned award dated 17.12.2009 has awarded a total sum of Rs. 27,500/-. Hence, the daimant has filed the M.A.(C) No. 450/2010 for enhancement of the award. Injured/claimant Sanjay Shekhar @ Sanju Bharadwaj filed Claim Case No. 48/2009 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 22,72,OOO/-, which has been dismissed by the learned Additional Motor Accident Claims Tribunal, Bilaspur by the impugned award dated 17.12.2009, holding that the i^lll®i^^i@^!^sN^li;^^^l%st'^a^s^^ll^ ^\ issue No.l is not proved as to whether the accident was occurred because the Truck No. C.G. 04-G/1508 was parked on the road in a dangerous/unsafe and in a negligent manner ( WT R'lidi 3/10/06 cpt SRT^cf? <S.-1 ^NT gcfi cCTfcp ^ftuft-04/uft-1508 cfTT ^lcT Tf Wgcf; TR 'ytl'i-llch 3TT ^ '3^ail|jct> ^s^ ^"r^ c^ cpRDT ^kid'11 *lRt1 §f t ). Hence, the injured/claimant has filed the M.A.(C) No. 451/2010 challenging the impugned award,. 6. Basanti Yadalvar, the mother of deceased Yashashvi, had filed Claim Case No. 49/2009 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 8,75,000/- for death of her daughter Yashashvi, wherein learned Additional Motor Accident Claims Tribunal, Bilaspur by the impugned award dated 17.12.2009 has awarded a total sum of Rs. 86,000/-. Hence, the claimant has filed the M.A.(C) No. 452/2010 for enhancement ofthe award. 7. The legal heirs/dependents of deceased Yogesh Yadalvar (wife Basanti Yadalvar and son Ojashvi Yadalvar) had filed Claim Case No. 46/2009 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 37,55,OOO/- for death of Yogesh Yadalvar, wherein learned Additional Motor Accident Claims Tribunal, Bilaspur by the impugned award dated 17.12.2009 has awarded a total sum of Rs. 11,17,560/-. Hence, the claimants have filed the M.A.(C) No. 453/2010 for enhancement of the award. 8. We have heard learned counsel appearing for the parties and perused the lower Court record. 9. It is evident that in all the four claim cases learned Additional Motor Accident Claims Tribunal, Bilaspur has passed different awards on 17.12.2010 itself and framed the common issue No.l in all the four claim cases to the effect as to whether the accident has occurred "^. -I 3^^^?^^^^®^^^^^^^s3^^^K^^s2^^^%;s S o because the Truck No. C.G. 04-G/1508 was parked on the road in a dangerous/unsafe and in a negligent manner ( cRT R'1 3/10/06 ^Pt ^.-1 ^RT Scl' ^TR' ^ftuft—04/^ft—1508 cfiT '\rRT ^ WScp TR <sl(1<iT1|ct> 3'T ^ '^STT'^'gi '&^ cp^t c^ ?PNUT 5,4c'1l ^lf^tT §f t ). This issue No.l was decided in affirmative in respect of the claim cases filed by Basanti Yadalvar for the injuries sustained by her, death of her daughter and death of her husband but so far as the claim case filed by the injured/claimant/driver of the Car, namely Sanjay Shekher Bhardwaj, this issue No.l was decided in negative. 10. It is to be noticed that the award was raade in all the above four claim cases on the same day i.e. 17.12.2010 by the saine presiding officer (Shri M. D. Jagdalla) i.e. Additional Motor Accident Claims Tribunal, Bilaspur, deciding the common issue No. l in a different manner. It has also been held in Claim Case No. 48/2009, filed by the driver Sanjay Shekher Bhardwaj, that there was contributory negligence but to our opinion it was a coinposite negligence so far as the three claim petitions filed by Basanti Yadalvar but for the driver i.e. Sanjay Shekher Bhardwaj the case could be different as he was himself driving the motor car Matiz. 11. HonT3le Supreme Court in the case of T. O. Anthony Vs. Karvarnan and others1 has held that there is difference between 'composite negligence and 'contributory negligence'. In an accident involving two or more vehicles, where a third party (other than the drivers/owners of 'the vehicles involved) claims damages for loss or injuries, compensation is payable in respect of the 'compogite negligence' of the drivers of those vehicles. The clsumants may claim the entire compensation from any of the insurance companies/owners or drivers (2008) 3 SCC 748 '^, of the vehicles. However, in case of 'contributory negligence' when a person suffers injury partly due to negligence on part of another person or persons and partly as a result of his own negligence, then negligence on the part of injured which contributed to the accident is referred to as his 'contributory negligence'. 12. In. the instant case, it is evident that learned 'Claims Tribunal fell into a conimon error cbmmitted by several tribunals, that composite negligence and contributory negligence are one and the same. Besides this, we have found that while, applying the multiplier the settled principles of law laid down in Sarla Veraia (Sait) and others Vs. Delhi Transport Corporation and another2 have not been followed by the Tribunal. Further, the promotional avenues of the deceased Yogesh Yadalvar, who was Assistant Engineer when the accident was occurred, was not considered to the extent of 30% considering the age of the deceased as 42 years at the time of accident in view of the decision in Sarla Verma (Smt) and others (supra) which was also referred in the case of K. R. Madhusudhan and otbers Vs. Adininistrative Officer and another3. 13. In view of the foregoing, we allow all the four appeals in part, set aside the impugned awards dated 17.12.2010 and remit back thernatters to the Claims Tribunal to consider and decide afresh in the light of the observations made herein above. No order as to costs. 14. Needless to mention that the parties shall be allowed to amend their pleadiilgs, implead parties, adduce further evidence again in support of their pleadings and may file further <lQcunients and get the documents verified etc. Thereafter, the decision shall be made by the 2(20Q9)6SCC 121 3 (2011) 4SCC689 \ •<- ^^^^^^:^^t^ 15. 16. 17. 18. Thakur Tribunal on merits. However, all the claim petitions shall be consolidated and shall be decided together. Fyrther, needless to mention that the Claims Tribunal shall make an endeavor to decide the Claim Petitions afresh, as early as possible, preferably within a period of six n-ionths from the date of appearance ofthe parties. Parties shall appear before the Claims Tribunal on 30.1 1.2011. The amount, if any, deposited with the Tribunal shall remain in fixed deposit scheme till fresh decision is'taken by the Tribunal. The lower Court records shall be sent back forthwith. SA'- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge i.'iTT ffiSBi