<-..,.. IN THE HIGH COURT JUDICATURE AT BILASPUR -^ ^I^C. Misc. ApEeal;Np__/ ^ OF 2008 g^g ggg^. APPELLANT (Insurer) -Thc Oricntal InsuTancc Company Lim.itcd, through the Divisional manager Oriental insurance Malviy Nagar Durg(C.G.) GO. Road Versus R^SPONDENTS: Qla-iT ^ant Drivcr of vehiclc /" Owner of vehicle J.Dev Narayan s/o'Jainlal kanoujc aged 20 years ^ occupation - mechanics - r/o charoda bhilai district -durg p.s. Newai (C.G.) ,.2.purushottam S/o Phattdal Aged 25 years P.S. Utai District - Durg C.G. 3. Rajendra Kumar Rai S/b "^ Subhash Rai R/o Selud Chouk Selud P.S. Utai district Durg C.G.. s'sa^ i^i APPEAL U/S 173 OF THE MOTOR VEHICLES ACT AGAINST^THE AWARD/ORDER DATED - 24.04,2008 PASSED _BY__THE^_9U1 ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL (FAST TRACKl DUR& ,PRESIDED OVER BY SHRI V.K. EKKA (C.G.) IN C.T.N0.69/2007 ^^^^^ ^' ^^h HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Miscellaneous Appeal (C.) No.736 of 2008 Appellant versus Respondents The Oriental Insurance Company Limited Dev Narayan and others Present: Shri Ghanshyam Patel, counsel for the appellant. Shri Shiv KumarGuha, counsel for respondent No.1 Shri Amrito Das, counsel for respondents No.2 and 3. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act ORAL ORDER (Passedon 20th July, 2011) The instant appeal arises out of the award dated 24-4-2008 passed by the 9 Additional Motor Accidents Claims Tribunal (F.T.C.), Durg in Claim Case No.69/2007. 2. Brief facts of the case, in nutshell, are that respondent No.l/claimant Devnarayan filed an application under Section 166 of the Motor Vehicles Act (henceforth 'the Act') before the Claims Tribunal seeking compensation of Rs.12 Lakhs for the injuries sustained in the accident took place on 7-10-2005 at about 9:05 A.M. On the date of accident, respondent No.1 was riding on a motor cycle. When he reached nearB.R.P. Chowk, at that time, a truck bearing registration No.CG 07 ZC 3684, which was being driven 'by respondent No.2 Purushottam rashly and negligently, dashed the motor cycle of respondent No.1, as a result of which, .^"^- S 1^.,.^%^ "^ li ^9^% ^ % """' l^ respondent No.1 sustained several injuries on his thigh, femur bone etc. He was admitted in Gayatri Hospital, Durg for treatment. As a result of the injuries sustained in the accident, respondent No.1 suffered permanent disability. The truck was owned by respondent No.3 Rajendra Kumar Rai and insured with the appellant Oriental Insurance Company Limited. 3. Respondents No.2 and 3/driver and owner of the truck remained ex parte before the Claims Tribunal. The appellant/insurance company filed a written statement before the Claims Tribunal denying all the allegations made in the claim petition and specifically pleaded that the accident had taken place due to head on collision between the two vehicles, therefore, it was a case of contributory negligence; the truck was being driven in violation of the terms and conditions of the policy of insurance and the driver of the truck did not have a valid and effective licence to drive the truck. On these pleadings, the insurance company claimed that it was not liable to satisfy the impugned award. 4. On the basis of the claim petition and the written statement, issues were framed by the Claims Tribunal and after affording opportunity to adduce evidence and hearing arguments, the Claims Tribunal awarded compensation of Rs.93,608/- in favour of respondent No.1 fastening liability upon the appellant and respondents No.2 and 3 to satisfy the av»/ardjointly or severally. 5. Shri Ghanshyam Patel, learned counsel appearing for the appellant argued that the Claims Tribunal, contrary to the documents ? i '"M:. and evidence available on record, has wrongly held that respondent No.1 was also equally negligent for the accident. hle further argued that the Claims Tribunal has also erred in holding that respondent No.1 suffered permanent disability to the extent of 12%. The doctor, who issued the certificate of permanent disability in favour of respondent No.1, was not examined by him, but the Claims Tribunal, accepting and relying upon the certificate, held that respondent No.1 suffered permanent disability to the extent of 12%, which is contrary to law. Learned counsel submitted that the impugned award, being untenable, deserves to be set aside and respondent No.1 deserves to be held equally responsible for the accident. 6. Shri Shiv Kumar Guha, learned counsel appearing for respondent No.1 supported the impugned award and contended that the compensation awarded by the Claims Tribunal is just and proper in the facts and circumstances of the present case. 7. Shri Amrito Das, learned counsel appearing for respondents No.2 and 3 supported the arguments advanced by learned counsel appearing for the appellant/insurance company. 8. I have heard learned counsel appearing for the parties and perused the impugned award as also the evidence available on record. The Claims Tribunal has held in paragraph 13 of the impugned award that respondent No.1 was not equally liable for the accident. Respondent No.1 Devnarayan (AW-1), in paragraph 12, has stated that the accident had taken place in between the road. When he was coming to Supela, Bhilai, no any vehicle was being ^^sg^ 'y^, '"%. /€..^ ''. rj • ^^^s^ :;- driven ahead or either side of his vehicle on the road. He was not overtaking any vehicle on the road. His left side on the road was totally free. The vehicle, which he was driving, was not owned by him, but it belonged to a person, namely, Choudhary. In paragraph 14, Respondent No.1 Devnarayan (AW-1) has stated that he had not stated before the police about misplacing of his mobile and D.L. (Driving Licence) and he did notjecollect number of the misplaced mobile. That mobile was with him 2-3 years prior to the accident and that mobile was of Reliance Company. In paragraph 15, Respondent No.1 Devnarayan (AW-1) has stated that he had not mentioned in his claim petition about misplacing of his mobile and driving licence and he had not asked anything from his Advocate about non-mentioning of misplacing of his mobile and driving licence in the claim petition. 9. In Andhra Pradesh State RoadTransport Corporation and another vs. K. Hemlatha and others, (2008) 6 SCC 767, the Hon'ble Supreme Court has held thus: "14. "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 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 is it necessary for the court to determine the extent of ^y^ ^'\ 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 stands 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 CQmposite negligence and contributory negligence. The hligh Court has failed to correct the said error. The above position was highlighted in T.0. Anthony v. Karvarnan, (2008) 3 SCC 748, SCC pp. 750-51, paras 6-7." :.,^^!t^.: !J iSy^-':l^;®^^ i!l '^^^-'^' "'.' :^ 10. In Renukadevi, H. etc. vs. Bangalore Metropolitan Transport Corporation etc., 2008 AIR SCW 2277, the Hon'ble Supreme Court has held thus: "5. ........ it cannot be said that the appellant was also not negligent. From the aforesaid findings of the tribunal as well as of the High Court which was on consideration of fact, it would be clear that some contributory negligence should also be attributed to the appellant. Considering the entire material on record, the High Court reversed the findings of the tribunal and also came to a conclusion of fact that compensation to the extent of 50 per cent on the ground that the appellant was also responsible for the contributory negligence should be on the petitioner. This finding of fact arrived at by the hligh Court reversing the finding of the tribunal, could not be said to be perverse or arbitrary in nature. ........" 11. From the above principles laid down by the Hon'ble Supreme Court and the evidence of Respondent No.1 Devnarayan (AW-1) in the instantcase, it is evident that negligence of respondent No.lto the accident was to the extent of 25% only and, therefore, respondent No.1 would be entitled to get compensation to the extent of 75% of the impugned award only. 12. So far as the finding recorded by the Claims Tribunal in paragraph 15 of the impugned award regarding 12% permanent disability suffered by respondent No.1 is concerned, the same, being unexceptionable, does not warrant interference by this Court. ^ .^ •^^€i^ ^. 'i\~^. v^ """ . ^" Gopal 13. For the foregoing reasons, the appeal deserves to be and is accordingly allowed in part and the impugned award is modified to the extent indicated above. Respondent No.1 shall now be entitled to get compensation of (Rs.93,608/- — 25% of Rs.93,608/-, i.e., Rs.23,402/- =) Rs.70,206/- only. Rest of the conditions mentioned in the impugned award shall remain intact. No order as to costs. Sd/- R.S. Sharma Judge