r ^, ..^^•^, 'il^itl^-^ I •^^—••j^ tl^e^?' ^.T^.F\ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI RANGNATH CHANDRAKAR, J Appellants Clajmants /^ Respondents Non-applicants MISG Appeal (C) No.32of 2010 1 Smt Hirmautin Bai, Wd/o Late Mahanguram Gond, aged about 25 years 2 Ku Lalima, S/o Late Mahanguram Gond, agedaboutOI years 3 Smt Ramla Bai, Wd/o Late Chamarrai, aged about 65 years Appellant No.2 being minor represented by his natural guardian & mother appellant No.1 Smt Hirmautin Bai, wd/o late Mahanguram Gond All r/o Near Railway Crossing Telibandha Raipur, District Raipur, CG VERSUS 1 Jashbeer Singh, s/o Darshan Singh Sikkh, aged about 25 years 2 Darshan Singh, s/o Darbara Singh, aged about 62 years Both respondents No.1 and 2 r/o ACC Labour Camp, near Ram Mandir, Jamul-Bhilai, District - Durg (CG) 3 Branch Manager, the New India Insurance Company Limited, Division Office, Thakkar Complex, GE Road, Bhilai, District - Durg CG Miscellaneous Appeal under Section 173 of Motor Vehicles Act ^S !i ^^'^ d^ tWiWWVSS^ ^ Present : Shri Satyendra Sahu and Shri Suresh Tandon, counsel for the appellants. None for respondents No.1 and 2. Smt Chitra Shrivastava, counsel for respondent No.3. ORDER (28th July, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. This is claimants' appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari (for short 'the Tribunal') vide award dated 31.07.2009, passed in Claim Case No.231/2008. 2) As against the compensation of Rs.16,05,000/-, claimed by , the appellants/claimants, unfortunate widow, minor daughter and mother of deceased Mahanguram Gond, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 23.01.2008, the Tribunal awarded a totalsum of Rs.81,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on aclose scrutiny of the entire evidence led before it held that deceased Mahanguram Gond died on account of the injuries sustained by him in the motor accident on 23.01.2008; the accident occurred due to rash and negligent driving of the drivers of both the vehicles i.e. Truck bearing registration No.CG-07-C/0759 and the Motorcycle bearing registration No.CG- 04-EC-7688, on which deceased Mahanguram Gond was travelling as a pillion rider; as the above Truck on the date of the accident was insured with the New India Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimants. 4) The Tribunal assessed the income of the deceased at Rs.15,000/- per annum. By deducting 1/3rd of Rs.15,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.10,000/- per annum. By muttiplying the annual dependency of Rs.10,000/- with the multiplier of 12, the compensation was worked out to Rs.1,20,000/-. By awarding further sum of Rs.42,000/- under other heads, the Tribunal awarded a total sum of Rs.1,62,000/-. As the driver of the Truck was held responsible for the accident to the extent of 50% only, the insurer of the Truck was directed to pay only Rs.81 ,000/- i.e.50% of Rs.1,62,000/- as compensation to the daimants for the death of deceased Mahanguram Gond in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.81,000/-@ 6% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Satyendra Sahu and Shri Suresh Tandon, learned counsel for the appellants placing reliance on the dictum of the Apex Court inthe case of TO Anthony Vs Karvarnan and others reported in (2008) 3 SCC 748 submitted that the Tribunal has ;\ erred in directing the insurer of the Truck to pay only 50% of the compensation assessed by holding it as to be a case of 'Contributory Negligence'. Learned counsel further submitted that, as deceased Mahanguram Gond was only a pillion rider on the Motorcycle and was not himself driving the Motorcycle, it would be a case of "Composite Negligence' and not a case of 'Contributory Negligence'. 6) Smt Chitra Shrivastava, learned counsel for respondent No.3 the New India Insurance Company Limited, the insurer of the Tmck on the other hand submitted that the Tribunal has rightly held it to be acase of 'Contributory Negligence'. 7) It is not in dispute that the Motorcycle at the time of the accident was being driven by one Manoj Kumar Gond and the deceased in the present case Mahanguram Gond was travelling on the said Motorcycle as a pillion rider. 8) The Apex Court while outlining the difference between the cases of 'Composite Negligence' and 'Contributory Negligence' in the case of TO Anthony Vs Karvarnan (supra) observed in paras 6 and 7: "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers. it is said that the person was injured on account of the composite negligence of those wrongdoers. In sucha case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a fe? case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." ! 9) In view of the above quoted dictum of the Apex Court in the case of TO Anthony Vs Karvarnan (supra), the finding recorded by the Tribunal holding it to be a case of 'Contributory Negligence' vis-S-vis deceased Mahanguram Gond cannot be sustained and is Jiable to be set aside for the simple reason that deceased Mahanguram Gond at the time of the accident was not driving any of the two vehicles involved in the accident. We, therefore, set aside the above finding and hold that the present case is of 'Composite Negligence' and not of 'Contributory Negligence' as held by the Tribunal. 10) In the case of 'Composite Negligence', the option is with the claimants to claim compensation from any ofthe two tort-feasors. Since in the present case, the claimants have chosen to claim compensation from the driver, owner and insurer of the Truck, the driver, owner and insurer of the Truck are liable to pay the entire amount of compensation of Rs.1,62,000/- assessed by the Tribunal. 11) For the foregoing reasons, the appeal filed by the appellants/ claimants is allowed in part. By setting aside the flnding of 'Contributory Negligence' recorded by the Tribunal, we hold that the present case is of 'Composite Negligence' and as such, respondent No.3 the New India Insurahce Company, the insurer of the above Truck is liable to pay the entire amount of compensation of Rs.1,62.000/- assessed by the Tribunal. . , ^ ; -. • . '',."»- :"^:^^ 12) As respondent No.3 the New India Insurance Company has already paid 50% of Rs.1,62,000/- under the impugned award, the liability of the insurance company, now is only in regard to the remainjng amount of Rs.81,000/- along with interest @ 6% per annum from the date of filing of theclaim petition till the date of actual payment. 13) Respondent No.3 the New India Insurance Company Limrted is granted three months' time for depositing the remaining amount of Rs.81,000/- along with interest @ 6% per annum from the date of tiling of the claim petition till the date of actual payment before the claims Tribunal. 14) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge padma