* THE HON’BLE SRI JUSTICE B.N. RAO NALLA + M.A.C.M.A. No.390 OF 2006 % 18.08.2011 # The New India Assurance Co., Limited, rep. By its Branch Manager, Bhimavaram. ….Appellant/3rd respondent Vs. $ Dulam Nageswara Rao and 5 others. …... Respondents !Counsel for the Appellant/3rd respondent: Sri Kota Subba Rao Counsel for the 1st Respondent: Sri S. Rama Chandra Murthy Counsel for the 6th respondent: Smt W.V.S. Rajeswari <Gist : >Head Note: ? Cases referred: 1.2008 AILD 129 (SC) 2. 2005 ACJ 588 3. ( 2009) 6 SCC 121 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No.390 OF 2006 Date: 18.08.2011 Between: The New India Assurance Co., Limited, rep. By its Branch Manager, Bhimavaram. .....Appellant/3rd respondent AND Dulam Nageswara Rao and 5 others. ....Respondents THE HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No.390 OF 2006 JUDGMENT: Aggrieved by the judgment dated 03.11.2005 passed in M.V.O.P. No.186 of 2001 on the file of the Motor Accidents Claims Tribunal (II Additional District Judge), East Godavari, Rajahmundry, the appellant – The New Indian Assurance Company Limited preferred this Civil Miscellaneous Appeal. 2. Respondent Nos.1 – claimant, respondent No.2 – driver of the taxi bearing No.AHK-6678, respondent No.3 – owner of the taxi, respondent No.4 – driver of the lorry bearing No. AP 37 –T-6476, respondent No.5 – owner of the lorry and respondent No.6 – the insurer of the lorry are petitioner and respondent Nos.1,2 and 4 to 6 respectively, and the appellant is respondent No.3 before the Tribunal. 3. For the sake of convenience, the parties are referred to as arrayed in the M.V.O.P. before the Tribunal. 4. The case of the claimant before the Tribunal is that on 24.4.2000 while he was travelling in a Taxi bearing No.AHK 6678 belonging to respondent No.2, which is insured with the respondent No.3, being driven by its driver respondent No.1 to go to Amalapuram from Bhimavaram, at Vedangi village at about 3.00 am, due to rash and negligent driving of its driver as well as respondent No.4, who is driver of the lorry bearing No. A.P.37 T 6476 belonging to respondent No.5 and insured with respondent No.6 – the Oriental Insurance Company Limited, Bhimavaram, the accident took place and as a result of which the claimant sustained several grievous and simple injuries including fracture of skull bones. Immediately, he was shifted to Government Hospital, Palakole and there, after the first aid, he was brought to Swatantra Multi Specialty Hospital, Rajahmundry on 25.4.2000 where he underwent treatment. A surgery was conducted by opening the skull, and fragments of fractured skull bones were removed from the brain. He was inpatient for a period of 25 days. He sustained fracture of hip joint which resulted in permanent disability and due to that he is unable to sit and stand for long time and also unable to walk freely and as such, he has to take assistance while moving. He spent nearly Rs.3,50,000/- for treatment and further he was advised for replacement of left hip joint and it may cost about Rs.1,50,000/-. Hence, he filed the claim petition claiming a total compensation of Rs.20,00,000/- for the injuries suffered by him in the alleged motor accident as well as for the nature of treatment taken by him at various hospitals incurring huge amounts towards medical expenses and also future medical expenses. 5. Respondent Nos. 1, 2, 4 and 5 remained ex parte. Respondent No.3 – appellant filed its counter denying the averments made in the claim petition stating that the accident did not take place due to rash and negligent driving of respondent No.1 and that respondent No.4 had no valid driving licence to drive and the lorry bearing No. AP 37 T 6476 had no valid permit to ply, as such, it is not liable to pay compensation. 6. Respondent No.6 filed separate counter contending that the lorry bearing No.AP 37 T 6476 was not insured with it and the cover note number is not tallying and that respondent No.4 had no valid driving licence to drive the lorry. It also denied the ownership of respondent No.5 over the lorry with physical control on it. Further, at the time of accident, the lorry bearing No.AP 37 T 6476 was stationed on the left side of the road and the taxi went and dashed against the stationed lorry on its back, as such, respondent No.4 is not at all responsible for the accident, and therefore, respondent Nos.1 to 3 alone are liable for payment of compensation to the claimant. 7. Based on the pleadings of both sides, the Tribunal has framed the following issues for trial: 1. Whether the accident occurred on account of the rash and negligent driving of the vehicle by its driver R.1? 2. Whether the petitioner is entitled to receive compensation, if so, to what amount and against whom? 3. To what relief? 8. To prove his case, the claimant got examined P.Ws.1 to 10 and got marked Exs.A.1 to A.287 and also got marked Exs.X.1 to X.5. R.W.1 was examined and Exs.B.1 to B.7 were marked for the respondents. 9. The Tribunal, after evaluating both oral and documentary evidence on record, awarded a total compensation of Rs.8,95,000/- directing respondent Nos. 1 to 3 to pay 5/6th share of the compensation and respondent Nos.4 to 6 to pay 1/6th of the compensation to the claimant with proportionate costs and interest at 7½% per annum. Aggrieved by the same, the present appeal is preferred by respondent No.3. 10. Now the contention of the learned counsel for respondent No.3 (appellant) is that the Tribunal erred in not equally apportioning the liability of compensation among the respondents and erroneously held that respondent Nos. 1 to 3 shall pay 5/6th share of the compensation on one hand and the remaining 1/6th share by respondent Nos.4 to 6 on the other. In support of his contention, he relied upon a decision of the Apex Court in T.O. ANTHONY v. KARVARNAN AND OTHERS[1] wherein it was held: “‘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 such a 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 case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor it is necessary for the court to determine the extent of liability of each wrongdoer separately.” The learned counsel also relied upon a decision of this Court in SYED IBRAHIM v. UNION OF INDIA AND ANOTHER[2] which is also on similar lines of the decision referred supra. He also contended that the total compensation of Rs.8,95,000/- awarded by the Tribunal as against the claim of Rs.20,00,000/- is on higher side. 11. The learned counsel for the claimant submits that the Tribunal had awarded lesser amount than the amount claimed by the claimant towards the medical expenses incurred by him and that the Tribunal did not commit any error in passing the impugned judgment, as such, there are no grounds to interfere with the same. 12. Now the point that arises for consideration is whether the judgment passed by the Tribunal is sustainable? 13. Having regard to the nature of the injuries suffered by the claimant, the nature of treatment undergone by him and the amounts spent by him towards treatment, it cannot be said that awarding compensation of Rs.8,95,000/- to him by the Tribunal is on higher side. Hence, the contention of the appellant cannot be accepted so far as the quantum of compensation is concerned. 14. The learned counsel for respondent No.3 further contended that the Tribunal has also committed an error in awarding interest at 7½% per annum instead of awarding the same at 6% per annum as per the decision of the Apex Court in SARALA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER[3]. 15. However, it is to be seen that it is common knowledge that now the Courts are awarding interest invariably either at 7½% per annum or more and the Tribunal awarded interest at that rate taking the facts and circumstances of the case into consideration. Therefore, the contention of the learned counsel that the interest awarded is on higher side also cannot be accepted. 16. At this stage, the learned counsel for respondent No.6 submits that the lorry bearing No. AP 37 T 6476 was stationed on the left side of the road and the taxi, which came from back side of the lorry, being driven by its driver in a rash and negligent manner dashed against the lorry and a criminal case was registered against the driver of the taxi and the same is supported by the evidence of prosecution witnesses in that criminal case. Further, the lorry was not insured with it and the cover note was also not tallying with the particulars furnished by the claimant. He also submits that the owner of the lorry remained ex parte. However, having considered the facts and circumstances, the Tribunal has awarded a total compensation of Rs.8,95,000/- as against the claim of Rs.20,00,000/- by the claimant holding that respondent Nos. 1 to 3 are liable to pay 5/6th share and respondent Nos.4 to 6 are liable to pay 1/6th share of the total compensation to the claimant with proportionate costs and interest instead of fastening the entire liability on respondent Nos.1 to 3 alone since the taxi driver is solely liable for the accident. 17. However, since no appeal is preferred by respondent No.6- Oriental Insurance Company, the contentions raised on its behalf cannot be looked into and further it is bound by the award passed by the Tribunal being insurer of the lorry. 18. Be that as it may, the accident in question did not occur due to contributory negligence, as none of the drivers of the vehicles involved in the accident are claimants in this case and that the claimant herein is a passenger in the taxi that involved in the accident. But, since there is no material on record to show that the lorry that was stationed on the left side of the road was parked by its driver taking all necessary precautions averting the accidents and in spite of that the accident in question took place due to rash and negligent driving of the driver of the taxi, this Court is of the view that the accident took place due to composite negligence of the drivers of the taxi and the lorry. 19. In view of the above, the maxim laid down in T.O. ANTHONY’s Case (1 supra) and SYED IBRAHIM’s Case (2 supra) that where there is composite negligence, all the wrong doers are equally liable for payment of compensation to the claimant, applies to the present case since, as held above, both the drivers of the lorry and the taxi are responsible for the accident and the claimant is a passenger in the taxi. 20. In view of the above, this Court is of the view that the Tribunal erred in apportioning the payment of compensation at 5/6th share by respondent Nos. 1 to 3 on one hand and 1/6th share by respondent Nos.4 to 6 on the other, instead of fastening the liability equally on all the respondents. Therefore, the liability for payment of compensation to the claimant is fastened on all the respondents equally directing respondent Nos. 1 to 3 to pay 50% of the total compensation awarded by the Tribunal to the claimant and the remaining 50% by respondent Nos.4 to 6, with proportionate costs and interest at 7½ % per annum. 21. With the above modifications, the Civil Miscellaneous Appeal is allowed in part. No costs. ____________________ B.N.RAO NALLA, J. 18.08.2011 Note: L.R copy to be marked. B/o. Gk. THE HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A.NO.390 OF 2006 Date: 18.08.2011 Gk. [1] 2008 AILD 129 (SC) [2] 2005 ACJ 588 [3]( 2009) 6 SCC 121