FAO No. 1918 of 2010 1 FAO No. 1919 of 2010 FAO No. 1940 of 2010 FAO No. 757 of 2010 FAO No. 1939 of 2010 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 1918 of 2010 Date of decision February 24, 2011 Sanjay ....... Appellant Versus Ajay Singh and others ........Respondents FAO No.1919 of 2010 Santosh Kumari ....... Appellant Versus Ajay Singh and others ........Respondents FAO No.1940 of 2010 Shakuntla ....... Appellant Versus Ajay Singh and others ........Respondents FAO No.757 of 2010 Satosh Kumari ....... Appellant Versus Ajay Singh and others ........Respondents FAO No.1939 of 2010 Dev Karan ....... Appellant Versus Ajay Singh and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN FAO No. 1918 of 2010 2 FAO No. 1919 of 2010 FAO No. 1940 of 2010 FAO No. 757 of 2010 FAO No. 1939 of 2010 Present:- Mr. Jitender Dhanda , Advocate for the appellant in FAO Nos.1918,1919 and 757 of 2010 Mr. R.A. Sheoran , Advocate for the appellant in FAO Nos.1939 and 1940 of 2010. Mr. Eklavya Darshi, Advocate for the Insurance Company. Mr. Rajbir Singh Sihag, Advocate for respondent Nos.1 and 2. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral). 1. All the appeals relate to the same accidents that involved a collision between the car and a jeep. Four of the claimants were passengers in the jeep and one claimant was driver of the jeep. The case of the appellant is covered in FAO No. 1939 of 2010. 2. While appreciating the evidence given by the parties, the Tribunal found that one of the witnesses Santosh had admitted that both the drivers were driving the respective vehicles fast. It was also admitted by all of them that the jeep was loaded with about 20 passengers and this over loading, the Tribunal took to be one of the contributing factors for the accident. The evidence was also with reference to the aspect that the car that was coming from the opposite direction was actually over taking a truck and it was his error of judgment that caused the accident. The driver of the car had avoided the witness stand and he gave no evidence to contradict the evidence of the driver of the jeep. This in my FAO No. 1918 of 2010 3 FAO No. 1919 of 2010 FAO No. 1940 of 2010 FAO No. 757 of 2010 FAO No. 1939 of 2010 view, was not taken note of by the Tribunal. The Tribunal was in error in apportioning an equal responsibility for the accident. The Tribunal noticed that the accident had taken place in a Highway where three vehicles could have gone side by side without any difficulty. I will take this to be definitely a factor relevant to note that if driver of the jeep had also been careful he could have avoided the collision. This, however will not be as far as to make equal responsibility for the driver. I will apportion the liability between the driver of the car and the driver of the jeep in the ratio of 75:25. 3. This apportionment could have a bearing for causing abatement to the claim made by the driver of the jeep but no abatement could have been resulted to any of the claimants by passengers in the jeep. In this respect, the Tribunal was clearly wrong in causing abatement of the claims for each of the claimants by 50%, holding that since the owner and the insurer for the jeep had not been impleaded, they could not have been made responsible. The Tribunal failed to note that as far as the passenger was concerned, the negligence cannot be contributory but it could have been merely a case of composite negligence. In cases of composite negligence, the right of claimant to enforce the entire claim against any one of the tort feasors is well established in law and this Court has had an occasion to deal with the same in Oriental Insurance Company Ltd. Vs. Meena Kumari and others FAO No.4246 of 2006 dated 24.8.2010. “There have been several decisions after the decision of the Bench of this Court where the consistent string of authorities, is even in a cases of composite negligence, it is unnecessary for a claimant to implead all the joint tort feasors. Matter of apportionment amongst the tort feasors ought not to be the concern of the claimant. It shall be appropriately FAO No. 1918 of 2010 4 FAO No. 1919 of 2010 FAO No. 1940 of 2010 FAO No. 757 of 2010 FAO No. 1939 of 2010 worked out when anyone among tort feasors makes a claim for contribution against other members who are involved in the accident. This has been considered by a decision of this Court itself in a subsequent decision in Oriental Insurance Company Limited Versus Narinder Kaur-2001(1) 127 PLR 138. It is just not a one-off decision of this Court but that has also been the preponderance of approach of every other High Court. To wit, please see, Divisional Manager, Oriental Insurance Company Limited Versus Jasoda Mohanta-AIR 1996 Orissa 120 ; Uttar Pradesh State Road Transport Corporation Versus Rajani- 2007 ACJ 1771 (Allahabad) ; Shaik Ali Sahel Versus K. Rajashree-2007 (1) TAC 581 (AP) ; TNSTC Versus Isappiappa-2007(1) TN MAC 527 ; Gujarat State Road Transport Corporation Versus Union of India-AIR 1988 Guj. 13 and United India Fire and General Insurance Company Limited Versus Varghese-1989 (2) Acc CC 483 (Ker.).” 4. The claims of the several claimants who were passengers ought to have been allowed for the whole amount. The right of enforcement will avail against the insurer for one of the tort feasors namely the driver of the car. 5. All the appeals in FAO No.1918, 1919,1940 and 757 of 2010 are allowed modifying the award for direction for compensation for the entire sum as determined by the Tribunal without subjecting them to an abatement of 50% in the manner done by the Tribunal. The remaining 50% which was denied to the claimants would be enforceable against the insurer of the car. 6. As regards the subject matter of appeal in FAO No.1939 of 2010, the Tribunal had dismissed the petition on the ground that the driver of the jeep was negligent and had contributed to the accident. It was clearly erroneous for even consistent with its own reasoning, it could have FAO No. 1918 of 2010 5 FAO No. 1919 of 2010 FAO No. 1940 of 2010 FAO No. 757 of 2010 FAO No. 1939 of 2010 resulted in a partial abatement to the extent to which he had contributed to the accident and it could not have been resulted in dismissal of the petition. The claimant had fracture of pelvis, fracture of upper trachondric bone and head injuries. He had been hospitalized for about two weeks and there were medical bills totalling to 45,000/-. I will assess the compensation for injuries and tabulate the same as below:- S.No. Head of claim Amount 1 Medicines `45,000/- 2 Attendant Charges `2,500/- 3 Special diet `2,500/- 4 Transport `2,500/- 5 Pain and Suffering `20,000/- 6 Loss of amenities `10,000/- Total `82,500/- 7. Out of the total amount there shall be abatement to the extent of 1/4th and the amount payable to the claimant will be 3/4th of the same having regard to the finding that the driver of jeep has to bear responsibility for 25% for the accident and to this extent there shall be an abatement. Consequently the claimant who was a driver of the jeep is entitled to `61,875/- which shall be against the insurer of the car. The appeal FAO No.1939 of 2010 is allowed to the above extent. (K. KANNAN) JUDGE February 24 , 2011 archana