w ^' t HIGH COURT OF CHHATTISGARH AT BILASPUR MA.rONo. 503 of 2007 Smt. Seeta Patel & others Vs. Pradeep Kumar Naik & another ORDER Forconsideration 15^-07-2011 Sd/- Judge l r-07-2011 Hon'ble Shri Raieev Guota 3 a^nre^— Sd/- Chief Justice Postfor: l5-07-2011 l\s ;\ Sd/- N.K. Agarwal Judge ii?fi8 ^i ^: i. '^ 1 ..^.j^ </• HIGH COURT OF CHHATTISGARH AT &<t.ASPUR M.A. (C) No. 503 of 2007 APPELLANTS 1. Smt. Seeta Patel, aged 29 years, Wd/o Late Shri Shobharam Patel. 2. Love Kumar Patel, aged about 5 years son of late Shri Shobharam Patel. 3. Kush Kumar Patel, aged about 5 years, son of late Shri Shobharam Patel. 4. Chunni Lal Patel, aged about 58 years, sonofAvdhutPateS. 5. Smt. Saraswati Patel, aged about 57 years, wife of Chunnilal Patel, No. 2 & 3 are minors through natural guardian mother Smt. Seeta Patet, appellant No. 1. Alt residents of village Kandurpali*, Post Sariya, Tahsil Sarangarh. Distt. Raigarh VERSUS 1. Pradeep Kumar Naik, aged 50 years, S/o Devendra Nath NaSk, R/o Sariya, P.S. Sariya, Tahsil Sarangarh, District Raigarh (CG). 2. The New India Insurance Cwnpany Limited, through Divisional Manager, The New Indla (nsurance Company Limited Madina Manzjl Kachahari Chowk Raipur Tahsil and District Raipur (CG). (APPEAL UNDER SECTION 173 OF THE MOTOR VEHIGLES ACT) (DB: lion'ble Mr. Raieev Gupta. CJ & Hon'ble Mr. NX. Aaarwat. J^ RESPONDENTS : Present : Shri R. Pradhan with Smt. Shashi Bareth, Advooates for appellants. Smt. lnc|i('a Tripathi, Advocate for respondent No. 1. Shri Srikumar Agrawal, Sr. Advocate with Shri Amrito Das, Advocate tqr respondent No. 2. ^ .Y ,.^A-^^ '" is^ ^:^^ /^ jii J •<,^^^,^' '^^s^?> u ^ ORDER (DeHveredonij /07/2011) Per: N.K. Aaarwal. J. This is claimants' appeal seeking enhancement in the award dated 29.12.2006, passed by the Chief Motor Accident Claims Tribunal, Mahasamund (for short the Tribunal') in claim case No. 114/2006. As against Rs. 35,25,000/- claimed byunfortunate wife, mlnor child and mother & father of deceased Shobharam Patel as compensation for the death of deceased in the motor accident, the Tribunal awarded a total sum of Rs. 3,51,400/- against the respondents holding them jointly and severally responsible for tts payment along with interest @ 6 percent per annum from the date of application till its actual payment. The Tribunal, on a close scrutiny of the evidence led, held : the accident had occurred due to compost negllgence of driver of Jeep and driver of unknown Truck, both drivers equally contributed to the cause of accident i.e. each to the extent of 50 percent; insurance company liable for payment of compensation to the daimants; assessed the amount of compensation payable to the claimants at Rs. 6,98,800/- (Rs. 6,94,800/- on account of claimants' dependency + Rs. 4000/- on other heads); deducted 50% of Rs. 6,94,800/- on account of negligence of driver of offending Jeep, and thus awarded Rs. 3,51,400/- as Gompensation to the claimants along with interest @ 6 percent from the date of apptteation till its actuat payment. Shri Pradhan, leame^ counsel for the appellants woukl submtt : deceased Shobharam Patel was occupant of the car and was not '\ r/-""'.^ v ^. -- 1. '\: I. .^'m 1 •;^::^^ .4' ^ 8. 9. driving the offending Jeep at the time of accident. The accjdent had occurred due to composite negligence of Jeep driver and driver of unknown Truck, and therefore, deduction of 50 percent from the amount of compensation on account of negligence of driver of offending Jeep is not sustainable in law. On the other hand, Shri Srikumar Agrawal, leamed Sr. counsel appearing for respondent No. 2/lnsurance Company supported the award impugned and would submtt that in the facts and circumstances of the case, amount awarded by the Tribunal is just and reasonable and needs no interference. We have heard the learned counsel appearing for the parties and perused the award impugned. We have perused the copy of poltey. Undisputedly, the policy is private Car package poltey covering risk of occupant of private Car, and therefore, the Tribunal has n(^ erred in holding respondent/insurance company Habte for payment of compensation. The question therefore arises for determination in the instant case is whether the amount of compensatjon awarded to the claimants can be reduced on the ground that the driver of the offending Jeep in whteh deceased Shobharam Patel was traveling as gratuitous passenger was guilty of composite negligence. The law is well settled, in an acddent involving two or more vehictes, where,athird party (otherthan the drivers and/or owners \ of the vehicles'involved) cfaims damages for loss or injuries, it is said that the person was injured on account of the composite negligence ofthose wrongdoers In such a case, each wrongdoer is .'\ ^, ^ ,."^''"s ^'-;. •^.^ ^ jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding againstall or any of them. 10. The Supreme Court in case of T.0. Anthony v. Kafvaman & others, reportedin (2008) 3 SCC748, has held in para 6 & 7 as under: 6. "Composite negligencew refers to the negltgence 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, Jt is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointiy and severally liabte 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 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 negiigence on the part of another person or persons, and partly as a result of his own negiigence. then the negiigence on the part of the injured which confrjbuted 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 mereiy 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 vehictes are involved in an accident, and one of the drivers claims compensation from the other driver alleging negjigence, and the other driver denies negligence or claims that the injured claimant hjmseff was negligent, then it becom^ necessary to consider whether the injured claimant was negligent and if so, whether he was sotely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liabJe, the principie of "composite negligence" will not apply nor can there be an automatic inference ttiat the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the exlent of contributory negiigence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has fgiled to correct the said error." 11. Now reverting to the facts of the case, the deceased Shobharam \ Patel was a third party^nasmuch as, Jeep was not being driven by deceased Shobharam at the time of accident. Once it is held that 'y ''^. '?A \ ^ ; ^ ..'-'s .1 ^.-•' 12. 13. the accident had occurred due to composite negligence of Jeep driver and Truck driver then deceased who was traveling in the said Jeep as a gratuitous passenger cannot be held responsible to the cause of accident and his legal representatives are within their right to claim compensatlon against any of them. The Tribunal mis- understood the distinction between composite and contributory negligence, and therefore, has falten in error in deductlng 50% amount of compensatjon on account of aKeged negligence of the Jeep driver. Therefore, in the considered opinion of this cwrt, the Tribunal has wrongly deducted 50 percent of amount of compensation towards negligence of Jeep driver and thus has fallen tn error in awarding only Rs. 3,51,400/~. For the foregojng reasons, the appeal filed by the claimants for enhancement of thecompensation is allowed. The compensation of Rs. 3,51,400/- awarded by the Tribunal is enhanced to Rs. 6,98,800/- (Rs. 6,94.800/- + Rs. 4000/- on other heads). The above amount of compensation shall carry interest @ 6 percent per annum from the date of application till its actual payment. Rest of the conditions mentioned in the award shall remain jntact. The award stands modified to the above extent. The respondent No. 2/The New India Insurance Compariy Limited, is granted three months' time to deposlt enhanoed amount of compensation before the concerned claims Tribunal. No order as to costs. Sd/- Chief Justoce Sahu Sd/- N.K. Agarwal Judge ^