IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Civil Miscellaneous Appeal Nos.2290 and 2371 of 2004 & Cross Objection No.59 of 2004 in CMA.No.2290 of 2004 CMA.No.2290 of 2004: M/s.Royal Sundaram Alliance Insurance Company Limited, Southern Regional Office, 46, Whites Road, Chennai-14. .. Appellant. vs. 1. R.Srikanthan 2. Minor Santhiya 3. Minor S.Skandakumar (Minors are rep. by 1st Respondent) 4. Krishnaveni. 5. M.s.Jahan Parcel Service, 6A, Gandhi Irwin Road, Egmore, Chennai-8. (Exparte in the Lower Court) 6. M/s.National Insurance Company Ltd., 768, Mount Road, Chennai. 7. R.Latha. (Exparte in the Lower Court) .. Respondents. CMA.No.2371 of 2004: M/s.National Insurance Company Ltd., 768, Mount Road, Chennai. .. Appellant. vs. 1. R.Srikanthan 2. Minor Santhiya 3. Minor S.Skandakumar (Minors are rep. by 1st Respondent) 4. Krishnaveni. https://hcservices.ecourts.gov.in/hcservices/ 5. M.s.Jahan Parcel Service, 6A, Gandhi Irwin Road, Egmore, Chennai-8. 6. R.Latha. .. Respondents. Cross Objection No.59/2004: 1. R.Srikanthan 2. Minor Santhiya 3. Minor S.Skandakumar (Minors are rep. by 1st Respondent) 4. Krishnaveni .. Cross Objectors vs. 1. M/s.Royal Sundaram Alliance Insurance Company Limited, Southern Regional Office, 46, Whites Road, Chennai-14. 2. M.s.Jahan Parcel Service, 6A, Gandhi Irwin Road, Egmore, Chennai-8. 3. M/s.National Insurance Company Ltd., 768, Mount Road, Chennai. 4. R.Latha. .. Respondents Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Order dated 27.02.2004 made in M.C.O.P.No.100 of 2003 on the file of Motor Accident Claims Tribunal [Chief Judicial Magistrate], Villupuram. Cross Objection filed by the Claimants to enhance the compensation awarded by the Tribunal in MCOP.No.100/2003 dated 27.02.2004 on the file of Motor Accident Claims Tribunal [Chief Judicial Magistrate], Villupuram. For Appellant in CMA.No.2371/04 & 6th Respondents : Mr.N.Vijaya Raghavan in CMA.No.2290/04 and 3rd Respondent in the Cross Objection For Appellant in CMA.No.2290/04 & 7th Respondent : Mr.K.S.Narasimhan in CMA.No.2371/04 and for 1st Respondent in the Cross Objection https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.A.S.Venkatachalapathy 1 to 4 with Appeals Senior Counsel and for cross objector in Cross for Obj. No.59/04 Mr.M.Sriram COMMON JUDGMENT R.BANUMATHI,J Feeling aggrieved by the apportionment of negligence in the ratio of 65% : 35% and award of compensation of Rs.57,70,000/- for the death of Anuradha, Appellant – M/s. Royal Sundaram Alliance Insurance Company Limited, insurer of Maruthi car bearing registration No.TN-20 X 6711 has filed C.M.A.No.2290/2004. Being aggrieved by the quantum of compensation, Appellant – National Insurance Company Limited, insurer of Mini lorry bearing registration No. TN-20 X 1572 has filed C.M.A.No.2371/2004. Being dissatisfied with the quantum of compensation, dependents of deceased Anuradha have filed Cross Objection No.59/2004 claiming enhancement of compensation. Since both the Appeals and Cross Objection arise out of the same order and the points for determination are one and the same, both the Appeals and Cross Objection were taken up together and shall stand disposed of by this Common Judgment. For convenient, the parties are referred as per their array in the Claim Petition. 2. The Appeals arise out of the accident on 22.8.2002. Brief facts are that on 22.8.2002, 1st Claimant-Srikanthan along with deceased Anuradha and her children were travelling in Maruthi Car bearing registration No.TN-20 X 6711 from Villupuram to Chennai. When the Car was nearing Padiriyapuliyur in GST Road near Lakshmi Hotel, the Mini lorry bearing registration No.TN-20 X 1572 came in the opposite direction from Chennai towards Villupuram trying to over take the lorry in a rash and negligent manner and dashed against the Maruthi car. Due to that impact, occupant of Maruthi car viz., Anuradha died on the spot and other occupants have sustained injuries. Regarding the accident, criminal case was registered in Crime No.429/2002 of Mylam Police Station. Anuradha was aged 30 years at the time of accident and she was permanent citizen of Australia. She was working at Australia as Binder Operator and was earning Rs.44,720/- per month. Alleging that the accident has occurred due to rash and negligent driving of both Mini lorry driver and Maruthi car driver, Claimants have filed Claim Petition claiming compensation of Rs.1,06,74,520/-. 3. Before the Tribunal, 1st Claimant-Srikanthan was examined as PW1 and Exs.P1 to P24 were marked. On the side of Respondents, one Narendran, private Investigator was examined as RW1. Driver of Mini lorry [Kalaiyarasan] was examined as RW2. One Selvanathan, who was then working as Assistant Administrative Officer in National https://hcservices.ecourts.gov.in/hcservices/ Insurance Company was examined as RW3. Driver of Maruthi car [Raju] was examined as RW4. One Ramachandran-father of deceased Anuradha was examined as RW5. On the side of Respondents, Exs.R1 to R4 were marked. 4. Upon analysis of evidence, Tribunal held that the accident was due to rash and negligent driving of both the driver of Mini lorry as well as Maruthi car and the owners and insurers of both vehicles are jointly and severally liable to pay compensation. Tribunal apportioned composite negligence in the ratio of 65% : 35% respectively. Taking monthly income of the deceased at Rs.32,000/- and adopting multiplier "15", Tribunal awarded compensation of Rs.57,60,000/- for "loss of dependency". Tribunal has also awarded Rs.10,000/- for 'loss of consortium", totalling into Rs.57,70,000/-. 5. Mr.K.S.Narasimhan, learned counsel for Appellant-Sundaram Alliance Insurance Company [CMA.No.2290/2004] contended that there is no specific allegation of negligence against the Maruthi car driver and the evidence of RW1 and his report [Ex.R1] cannot be accepted. Learned counsel would submit that RW1 had not examined PW1 or driver of Maruthi car and while so, based upon the evidence of RW1 and his report Ex.R1, Tribunal erred in fastening the liability upon driver of Maruthi car. It was mainly contended that the Maruthi car being small vehicle, rear portion alone damaged in the accident which was not analysed in a proper perspective by the Tribunal and the Tribunal erred in fastening the liability upon Maruthi car and findings of the Tribunal are not sustainable. In support of his contention, learned counsel placed reliance upon 2004 (1) TN MAC (DB) 276 [The National Insurance Co., Ltd., Madurai v. Sujaya C.Moorthy and others]. 6. Mr.N.Vijayaraghavan, learned counsel for Appellant – National Insurance Company [CMA.No.2371/2004] has submitted that in collision between two vehicles, apportionment of negligence does not arise, since owners and insurers of both the vehicles would be jointly and severally liable to pay compensation. Learned counsel would further contend that a doubt here and there will not obscure the findings and Claimants can claim entire compensation from all or any of the drivers, owners and the insurer of the vehicle and each one of them are jointly and severally liable to pay compensation. In support of his contention, the learned counsel placed reliance upon 2000 ACJ 1463 [Ganesh v. Syed Munned Ahamed and others]. 7. Upon consideration of evidence, findings of the Tribunal and rival contentions, the following points arise for consideration in these Appeals as well as Cross Objection. (1) Whether the accident was due to rash and negligent driving of the Mini lorry driver alone as contended by the insurer of Maruthi car – Sundaram Alliance Insurance Company? https://hcservices.ecourts.gov.in/hcservices/ (2) Whether the accident was due to composite negligence of Mini lorry bearing registration No.TN-20 X 1572 and Maruthi car bearing registration No.TN-20 X 6711? (3) Whether the Tribunal was right in apportioning composite negligence in the ratio of 65% : 35%? (4) Whether the total compensation of Rs.57,70,000/- awarded by the Tribunal is reasonable? (5) Whether the compensation of Rs.57,70,000/- awarded by the Tribunal is to be enhanced and if so, what is the quantum? 8. Points 1 to 3:- First claimant's sister viz., 7th Respondent is the owner of Maruthi car. On 22.8.2002, 1st Claimant [PW1] and deceased Anuradha and their children and mother of PW1 after worshiping in Palani, returning in Maruthi car from Villupuram to Chennai. Anuradha was seated on the rear right side of the car. In his evidence, PW1 has stated that when the car was proceeding near Padiriyapulliyur in GST Road, near Lakshmi Hotel, the Mini lorry bearing registration No.TN-20 X 1572 driven in a rash and negligent manner over took another lorry and hit against Maruthi car which suffered extensive damages and Anuradha sustained fatal injuries and died instantaneously on the spot. PW1 and his father RW5 have spoken about the accident and have also stated that the accident was due to rash and negligent driving of Mini lorry driver. 9. In his evidence, RW4-Raju, driver of Maruthi car has stated that while he was proceeding from Villupuram to Chennai and when the car was nearing Palapattu, Mini lorry came in the opposite direction overtaking another vehicle and though he tried to swerve the car on the left side, Mini lorry hit against the Maruthi car. In the accident, driver also sustained fracture in his right hand and Anuradha who seated on the rear right side sustained fatal injuries and died on the spot. Evidence of RW4 is to the effect that the accident was due to rash and negligent driving of Mini lorry driver. 10. RW2-Kalaiarasan, driver of Mini lorry has stated that while he was proceeding from Chennai to Madurai and when proceeding near Vikravandi at about 3.15 A.M., Maruthi car bearing registration No.TN-20 X 6711 came in the opposite direction overtaking another one van. RW2 has also stated that he also overtook another vehicle and on seeing the Maruthi car, he swerved his vehicle on the left side and since there was no space on the left side, Mini lorry hit against the rear right side of Maruthi car. RW2 has stated that the accident was due to negligent driving and carelessness of driver of Maruthi car and Maruthi car driver alone is responsible for the accident. In his evidence, RW2 has stated that he has overtaken by another lorry and Maruthi car came from the opposite direction and there was no place for him to swerve to the left and while he turned to the left side, Mini lorry's front side hit against the back side of Maruthi https://hcservices.ecourts.gov.in/hcservices/ car and that he is no way responsible for the accident. 11. RW1-Narendran, who was then working as Investigating Officer in M/s.Victory Associates has inspected the accident spot and had also made enquiries and Ex.R1 is the Investigation Report. Opining that the Maruthi car coming from the opposite direction overtook another Van and hit against the Mini lorry and driver of Maruthi car was negligent and responsible for the accident. 12. For ascertaining the accident, oral evidence of PW1 and RWs.1 to 4 will have to be analysed in the light of the documents and other circumstances. Ex.P1 is the FIR registered in Crime No.429/2002 of Mayilam Police Station in which 1st Claimant has stated that Mini lorry hit against the Maruthi car. In Ex.P1-FIR, the 1st Claimant has stated that @tpGg;g[uj;jpy; ,Ue;J brd;id bry;Yk; njrpa beL";rhiyapy; te;J bfhz;L ,Ue;j nghJ vjpnu brd;idapypUe;J tpGg;g[uk; nehf;fp te;J bfhz;oUe;j TN-20 X 1572 vd;fpw Mini Cargo yhhp Rkhh; 3/15 kzpastpy; ghyg;gl;L yl;Rkp ncwhl;ly; mUfpy; mjpfntfkhft[k;. ftdf;Fiwthft[k; Xl;o te;J v';fsJ khUjp fhh; kPJ nkhjptpl;lJ@/ From Ex.P1-FIR, it is not possible to reconstitute the accident and who was at fault. 13. In the accident, front side of Maruthi car was not much damaged, only rear right side seat was extensively damaged and Anuradha instantaneously died on the spot. Laying emphasis upon the pattern of damages, Mr.Narasimhan, learned counsel appearing for insurer of Maruthi car submitted that driver of Maruthi car tried to swerve to the left side and that is why front side was not damaged and only the rear right side was damaged and while so, Tribunal erred in apportioning the negligence in the ratio of 65% : 35%. To examine the merits of the contention, we have also gone through Ex.P2-MVI Report. As is seen from Ex.P2-MVI report that Mini lorry [TN-20 X 1572] suffered the following damages: "Front bumper, right coul damaged; front right anchor cut; spring bar dislocated; front maul fixle dislocated; steering box, link bend, chassis bend at front side; fan damaged". Maruthi car [TN-20 X 6711] suffered the following damages: "Front head light all glasses except rear window screen glass broken; complete body superstructure very badly damaged; Engine, gear box, steering box, front wheel, dash board, passenger seat, chassis were badly damaged". From the pattern of damages, it is seen that front right side of the Mini lorry hit against the Maruthi car resultantly Maruthi car sustained extensive damages. 14. Learned counsel appearing for insurer of Maruthi car submitted https://hcservices.ecourts.gov.in/hcservices/ that deceased was seated on the right rear side and only on account of direct hit of Mini lorry on Maruthi car, she sustained head injuries and died on the spot and the driver of Maruthi car as well as PW1 sustained only negligible or no injuries in the said accident which the Tribunal failed to appreciate in a proper perspective. It was further submitted that in his cross-examination, RW2 had admitted that Mini lorry was a heavy vehicle and Maruthi car was a light vehicle and driver and PW1 have sustained simple injuries and front side of car was not damaged which probabilises that only Mini lorry hit the right rear side of the Maruthi car and was negligent. It was further argued that oral evidence would make it clear that Mini lorry driver overtook another vehicle and he could not swerved his vehicle due to parked vehicle on his left side and right front side of the Mini lorry collided which would show that the accident was solely due to negligent and reckless driving of Mini lorry driver and therefore, Tribunal ought to have held that the accident was due to negligent driving of the Mini lorry driver and erred in apportioning the negligence in the ratio of 65% : 35%. 15. The contention that the entire negligence should have been fastened upon Mini lorry driver does not merit acceptance. It is common experience that while driving at night time the glare of vehicles coming from the opposite direction leaves the other driver blinded for a moment, the result of which is that the traffic going ahead of him or parked vehicle is not visible, unless there are some lights or other indication to show the existence of such traffic or parked vehicles. On seeing the Mini lorry coming in the opposite direction, it was for the Maruthi car driver to have immediately slow down when the glare of the Mini lorry coming from the opposite side affected him. In the evidence, there is nothing to indicate that Maruthi car driver reduced his speed and avoided collision. Thus negligence of Maruthi car driver is also established by the fact that he was driving with speedily. It is also pertinent to note that long distance which the car was traversing is also to be kept in view. PW1 and his family started in Palani on 21.8.2002 at about 3.00 P.M. and after resting a while in Villupuram, they were proceeding to Chennai. 16. Ex.R1-Investigation Report contains Accident Registers of RW4- driver of Maruthi car and children of PW1 [Minor Skandakumar and Minor Sandhiya]. In the Accident Register of driver of Maruthi car, the manner of accident is stated as "Alleged to have been injured while driving a Maruthi car while overtaking a van around 3 AM on 22.08.2002 near Sendoor (Vikravandi)." In the Accident Registers of 3rd and 2nd Claimants also, the manner of accident has been stated as above. Pointing out the manner of accident stated in the Accident Registers, Tribunal has observed that Maruthi car also overtook a van around 3.00 A.M. and contributed to the accident. The manner of accident stated in the Accident Registers is the earliest statement made by the Claimants, much weight has to be attached as to the manner of accident. Pointing out the manner of accident as stated in the Accident Registers, Tribunal has observed that RW4-Maruthi car https://hcservices.ecourts.gov.in/hcservices/ driver has not come out with correct particulars and has suppressed the material particulars. Upon analysis of evidence and Ex.R1- Investigation Report, in our considered view the Tribunal has rightly held that the accident was due to composite negligence of both the vehicles – Mini lorry and Maruthi car and both the vehicles are the joint tortfeasors. 17. Driver of Maruthi car has filed MCOP.No.37/2003 on the file of Motor Accident Claims Tribunal [II Additional Subordinate Judge], Villupuram. As per the order in C.M.P.No.188/2010 dated 08.03.2010, the Award in MCOP.No.37/2003 was ordered to be received as additional evidence in these Appeals and marked as Ex.R5. Tribunal has recorded finding that the accident was solely due to negligent driving of Mini lorry driver. In MCOP.No.37/2003, Tribunal has passed the Award on 30.11.2006 awarding compensation of Rs.1,83,300/- jointly and severally payable by the owner and insurer of Mini lorry to the car driver. 18. It was submitted that the Award in MCOP.No.37/2003 was not challenged and the same has become final. Learned counsel for insurer of Maruthi car contended that in MCOP.No.37/2003, the Tribunal has held that the accident was solely due to negligence of Mini lorry driver and the impugned Award in MCOP.No.100/2003 apportioning the negligence in the ratio of 65% : 35% is contradictory and there cannot be two contradictory views as to the same accident. In support of his contention, learned counsel for insurer of Maruthi car placed reliance upon 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others] where collision between Corporation bus and truck coming from opposite direction and several passengers travelled in the bus including driver sustained injuries. Passengers filed Claim petitions and the driver of the bus was not impleaded as Respondent. Driver of the bus examined onbehalf of Corporation and finding on negligence in claims made by passengers went against the bus driver and the bus driver did not file any appeal even when his own claim petition was pending before the same Tribunal and the finding attained finality and it was accepted by the Corporation. In such facts and circumstances, the Supreme Court held that non-filing of appeal would give rise to an anomalous situation. Holding that the Appellant was found to be rash and negligent in driving and is legally liable and that if he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal there against, in Para (23), the Supreme Court held as under;- "23. This case gives rise to an anomalous situation. The Corporation has been found to be liable to pay the amount of compensation claimed by the passengers of the bus only because the appellant was found to be rash and negligent in driving. The law cannot be construed in such a manner so as to lead to such a conclusion as the same court in this case which was being heard simultaneously held that he was not negligent and the driver of the truck was negligent so as to https://hcservices.ecourts.gov.in/hcservices/ fasten the liability also on the owner of the truck. ....." 19. Laying emphasis upon the findings in MCOP.No.37/2003 where the Tribunal held that the accident was due to negligent driving of Mini lorry driver, learned counsel contended that findings in MCOP.No.37/2003 was not challenged and the finding has become final and therefore, there cannot be any contradictory finding in respect of the same accident. In support of his contention, learned counsel also placed reliance upon the unreported Judgment in C.M.A.Nos.1553 of 1999 and 2031 of 2000 dated 26.12.2001 [P.S.D.,J], wherein the learned single Judge has held that two contradictory views will lead to an anomalous situation which is not permissible in law. 20. Learned counsel for insurer of Mini lorry has submitted that as against the Award in MCOP.No.37/2003 and its findings thereon, Appellant-National Insurance Company has preferred an appeal in CMA SR.No.82279/2009 along with application to condone the delay and the matter is said to be pending. As rightly submitted by the learned counsel Mr.Vijayaraghavan, the finding of the Tribunal in MCOP.No.37/2003 might not have been brought to the notice of the Tribunal while passing the Award in MCOP.No.37/2003. In our considered view, since, the Award in MCOP.No.37/2003 is challenged by way of an appeal in CMA SR.No.82279/2009, we do not propose to go into the question whether the finding in MCOP.No.37/2003 would operate as issue of estoppel. Since the appeal is said to have been filed, we do not propose to go into the applicability of the decision in 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others]. 21. Upon analysis of evidence, Tribunal has held that the Respondents 1 to 4 are jointly and severally liable to pay compensation and apportioned the negligence in the ratio of 65% : 35%. Learned counsel for insurer of Mini lorry contended that in collision between two vehicles, apportionment of negligence and liability does not arise. Placing reliance upon 2000 ACJ 1463 [Ganesh v. Syed Munned Ahamed and others], it was further contended that when the accident was caused on account of negligence of driver of two vehicles, the victim or legal representatives of deceased can recover compensation from all or any one of the joint tort-feasors. After referring to various decisions as to whether there is necessity for apportionment of liability, the Full Bench of Karnataka High Court held as under:- "The law of Torts under common law as stated by various authors makes it clear that in case an accident is caused on account of negligence of the drivers of two vehicles or in other words, in case of joint tortfeasors, the liability of the said joint tortfeasors is both joint and several and it is open to the victim of the accident or the legal representative of the victim of the accident in the case of death, to proceed against any one of the joint tortfeasors or against both https://hcservices.ecourts.gov.in/hcservices/ of them. If the drivers of both the vehicles, on account of their rash and negligent driving, are the cause for the accident and as a result of it, damage is caused to a third party, the liability of each of the joint tortfeasors cannot be limited insofar as the victim of the accident is concerned on the ground that they must be treated as several tortfeasors and their liability must be limited to the proportion or to the extent of negligence. While the liability of the joint tortfeasors inter se amongst them must be held to be proportionate to the extent of their negligence, insofar as the claimant, who is the victim of the accident or the legal representative of the deceased in an accident is concerned, it is joint and several. The mandate contained in section 110-B of Motor Vehicles Act, 1939, requiring the Tribunal to specify the amount which is required to be paid by the insurer, owner or driver of the vehicle involved in the accident, or by all or any of them, as the case may be, cannot be understood or interpreted to mean that the right of the claimant to proceed against one of the joint tortfeasors in the case of composite negligence is taken away or in any manner modified or altered." 22. Composite negligence would arise when negligent acts or omissions of two or more persons have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and as such he is entitled to sue all or anyone of the negligent persons for damage. It is no concern of his whether there is any duty of contribution or indemnity as between the negligent persons [See AIR 1975 P & H 259 [Union of India v. Hindustan Lever Ltd.]. 23. The principle of composite negligence comes in where more than one person is responsible in the commission of the wrong and the person wronged had a choice against all or any one or more than one of the wrongdoers. Every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible