•^-. ^.K- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEVGUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 570 of 2009 ADpeIlant ResDondents Chhagan Lal Sahu, s/o Parasram Sahu, aged about 40 years, r/o village Kharra, Tahsil Gurur, district Durg C.G. VERSUS Salimuddin, s/o late llmuddin.aged about 55 years, r/o Sihawa Chowk, Dhamtari, tahsil & district Dhamtari C.G. The Oriental Insurance Company Limited, near Adarsh Bal Mandir, Dhamtari, Tahsil & district Dhamtari C.G. Memo of appeal under Section 173 of Motor Vehicle Act Present: Shri Vivek Sharma, counsel for the appellant. Shri Ajay Mishra, counsel for respondent No.2. ORDER (23rd August, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ claimant Chhagan Lal Sahu is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari (for short, 'the Tribunal') vide award dated 02.05.2008, passed in Claim Case No. 93 of 2007. ^ «(is;€^ . ! ^ ^^' "^-x.^^?> MAC No. 570 of 2009 ^ '^. 2) As against the cpmpensation of Rs.5,15,000/- claimed by the appellant/claimant, by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 07.04.2006, the Tribunal awarded a total sum of Rs.28,500/- 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 a close scrutiny of the entire evidence led before it held that claimant Chhagan Lal Sahu sustained multiple serious injuries in the motor accident on 07.04.2006; the motorcyclist i.e. Bhagbali Sahu (deceased) and driver of delivery auto-rickshaw bearing registration No.CG-05/C/0971 equally contributed to the accident to the extent of 50% each; as the above delivery auto-rickshaw on the date of the accident was insured with the Oriental 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 claimant. 4) The Tribunal considering the number and nature of the injuries sustained by the claimant jn the motor accident and the amount proved to have been spent on his treatment, awarded Rs.32,000/- towards loss in the future earning capacity on account ofthe disability; Rs.10,000/- towards medical expenses; Rs.7,500/- towards loss of income during the period of treatment; Rs.5,000/- for pain and suffering; and Rs.2,500/- for special diet and other expenses. The Tribunal, thus, assessed the total ^1 MAC No. 570 of 2009 compensation at Rs.57,000/-. As the driver of delivery auto- rickshaw was held liable to the extent of 50%, the insurer of the delivery auto-rickshaw was directed to pay Rs.28,500/- i.e. 50% of Rs.57,000/- as compensation to the claimant. The Tribunal further directed payment of interest on the above amount of compensation of Rs.28,500/- @ 6% per annum from the date of filing of the daim petition till the date of actual payment. 5) Shri Vivek Sharma, learned counsel for the appellant placing reliance on the dictum of the Apex Court in the caseof T.0. Anthony Vs. Karvarnan and Others reported in (2008) 3 SCC 748 submitted that though the Tribunal hasrightly assessed the compensation payable to the claimant at Rs.57,000/-, it has erred in directing only 50% of the above assessed compensation be paid by the insurer of delivery auto-rickshaw to the claimant by holding it to be a caseof 'Contributory Negligence' whereas in fact it was a case of 'Composite Negligence' as admittedly the claimant was not driving any of the two vehicles involved in the accident and he was only a pillion-rider on the motorcycle. 6) Shri Ajay Mishra, learned counsel for respondentNo.2 the Oriental Insurance Company Limited, on the other hand, could not dispute that in view of the dictum of the Apex Court in the case of T.0. Anthony Vs. Karvarnan and Others (supra) it would be a case of 'Composite Negligence' vis-a-vis the claimant and not a case of 'Contributory Negligence' as held by the Tribunal. MAC No. 570 of 2009 ^'.0 7) Admittedly, claimant Chhagan Lal Sahu was a pillion-rider on the motorcycle which was being driven by deceased Bhagbali Sahu on the date of the accident. The Oriental Insurance Company Limited is the insurer of the other vehicle delivery auto-rickshaw. 8) The Apex Court in the case of T.0. Anthony Vs. Karvarnan and Others (Supra), while considering the distinction between the cases of 'Contributory Negligence' and that of 'Composite Negligence' observed in para 6 : "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 such a case. each Wronadoer is iointlv and severallv liable to the iniured for pavment of the entire damaaes and the iniured person has the choice of proceedina aaainst allor anv of them. Insuch a case. the injured need not establish the extent of resDonsibilJtv of each wronadoer separatelv, nor is it necessarv for the court to determine the extent of liabilitv of each wronadoer separatelv. 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 ^^^^ ^^^••' MAC No. 570 of 2009 •^} ,./-"v| injuries stand reduced in proportion to his contributory negligence." 9) On due consideration of the submissions of learned counsel for the parties and the above quoted observation of the Apex Court in the case of T.0. Anthony Vs. Karvarnan and Others (Supra), it is apparent that the Tribunal has fallen into error in holding it to be a case of 'Contributory Negligence' vis-a-vis claimant Chhagan Lal Sahu who was a pillion-rideron the motorcycle involved in the aceident. We, therefore, set aside the above finding recorded by the Tribunal and hold it to be a case of 'Composite Negligence' wherein the claimant is entitled to claim compensation from any ofthe tortfeasor. 10) As in the present case the claimant has opted to claim compensation from the driver-cum-owner and insurer of the delivery auto-rickshaw, they are liable to pay the entire amount of Gompensation assessed by the Tribunal to the claimant. 11) For the foregoing reasons, the appeal, filed by the appellanVclaimant is allowed in part. While maintaining the quantum of compensation of Rs.57,000/- assessed by the Tribunal, the findingrecorded by the Tribynal, holding it to be a case of 'Contributory Negligence' is hereby set aside. We hold the driver-cum-owner and insurer of delivery auto-rickshaw liable to pay the entire amount of compensation of Rs.57,000/- assessed by the Tribunal to the claimant. As the claimant has already received 50% of Rs.57,000/- from the insurer of the delivery auto-rickshaw under the impugned award, the liability of '^Si^^^. 1 ^3:-: ""..^S6S^-;-;>. >^ MAC No. 570 of 2009 \. respondent No.2 the Oriental Insurance Company Limited now is of making payment of balance 50% of Rs.57,000/- i.e. Rs.28,500/- to the claimant. A further sum of Rs.3,500/- is also awarded to the claimant towards quantified amount of interest on the balance amount of compensation of Rs.28,500/-. 12) RespondentNo.2the Oriental Insurance Company Limited is granted three months'time for depositing the total sum of Rs.32,000/- (Rs.28,500/- towards balance 50% of the amount of compensation of Rs.57,000/- assessed by the Tribunal + Rs.3,500/- towards quantified amount of intereston the balance ambunt of compensation of Rs.28,500/-) before the concerning Claims Tribunal. 13) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge