FAO No.4616 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4616 of 2007 Date of Decision. 12.08.2010 United India Insurance Co. Ltd., through its Deputy Manager, its duly constituted attorney, Regional office, Sector-17, Chandigarh ......Appellant Versus Puran Singh son of Bahadur Singh resident of village Hamrajpur, Tehsil and District Gurdaspur and another ......Respondents Present: Mr. Gopal Mittal, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 on appeal against an award making it liable for the accident involving a collision of the insured's motor cycle and a truck. The owner and the insurer of the truck had not been made as party. It so happened that the motor-cycle was owned by the son of the claimant himself. The claimant was a pillion rider and his son, who was the driver of the motor-cycle, caused the accident. 2. The son-owner was prepared to support the cause of the father that the accident was wholly caused by him, if only it meant making his own insurer liable. Owner's (son) personal interest to secure the compensation for the father-claimant cannot be denied. FAO No.4616 of 2007 -2- The insurance company, therefore, had the benefit of defence under Section 170 of the Motor Vehicles Act. 3. The learned counsel contends that the case was bad without impleading the owner and insurer of the offending truck. The further contention is that if ever the liability must have been apportioned in any way available to the claimant, it could still be that the driver of the motor-cycle namely the claimant's son and the driver of the truck should have been held jointly responsible for the accident and therefore, the apportionment of liability could have been only in the ratio of 50:50. At worst, the learned counsel would contend that the insurance company could be made liable only to the extent of 50% and not the entire amount. 4. The expressions contributory negligence and composite negligence have obtained fairly certain meanings which are distinct. If the claim is at the instance of a person, who had contributed to the accident then it will be a case of contributory negligence where the accident to which he had contributed would result in abatement to that extent. If the claimant is a person, who is not the owner of either of the vehicle or not driver of any one of the vehicles, then as far as the claimant is concerned, it is case of a composite negligence of two vehicles. If there is a composite negligence, law allows for a claimant to file a case against any one of the persons responsible for the accident and leave it to that owner or insurer to file independent action to seek for contribution depending on the extent to which the other vehicle was liable. In a case of collision although the driver of the motor cycle was the claimant's son, I cannot place FAO No.4616 of 2007 -3- the whole burden only on the driver of the motor cycle. A head on collision invariably means the negligence of yet another vehicle as well. If the truck driver was also responsible for the accident, the insurer for the motor cycle will have a right of action after satisfying the award and secure a refund to the percentage to which the other vehicle was responsible for the accident. It shall not be worthwhile to undertake exercise of apportioning the liability in these proceedings when the driver, owner or the insurer of the other offending truck is not a party before this Court, for that would mean undertaking an adjudication in the absence of party to which they will not be bound. 5. While affirming the award and making the insurer liable for the entire amount, I will modify the award to the extent providing for the insurer a right of action against the owner of the insurer of the other offending vehicle RJ-13-6973 by means of an independent action and the starting point of litigation must be taken to be date of this order when the finding is rendered that the motorcyclist himself was not fully responsible for the accident and when the insurer has to make the whole payment with the right of contribution from the other. The issue and extent of apportionment will be considered in such a case, when it is filed. 6. The appeal is disposed of with the observations referred to above. (K. KANNAN) JUDGE August 12, 2010 Pankaj*