^^^-^^^ _ ^ .^f^ 'INTHE HON'BLE HIGH COURT QF CHHATnSGARtiAT O^ BILASPUR (C.G.) MISC. APPEAL (C) NO.Q ^OF 2010 (D.B.) g^giQp BeTlA APPELLANT ./..€^ ,1^^.^r' Noharram Sahu S/o Sukhelram Sahu, aged aboutg^ears, R/o Village ^ ^^x Gorakhpur, Police Station Dadhhi, ^- "^ ;,.^^" ^.v ?^"- Tahsil Bemetara, District Durg (C.G.). (Owner of the vehicle) VERSUS RESPONDENTS : ^l. Kantibai Widow of Late Manharan Verraa, aged about 42 years. 2. V- 3. k 9 ^w^r t- Vijay Kumar S/o Late Manharan Verraa, aged about 26 years. Ajay Kum.ar S/o Late Manharan Vernia, aged about 16 years, Minor, through his natural guardianMother Kantibai Widow of Late Manharan Verma. (Claimants ) All R/o Village Godhhi, Tahsil Dhamdha, Police Station Nandini Ahiwara, presently residing at Village Chhirha, Tahsil Bemetara, DistrictDurg(C.G,). Takeshwar S/o Bhagwat Ram Sahu, R/o Village Nevsa, Police Station and Tahsil Nawagarh, District Durg (C.G.). (Driver of the vehicle) I.C.I.CJ. Lorabard Limited Corapany, Indian Coffee House, Second Floor Near Raj Talkies, Raipur (C.G.). (Insurer) @ MISCELLANEOUS APPEAL UNDER SECTION_173 OF THE MOTOR VEHICLES ACT. 1988 ^ \^ HIGH COURT OF CHHATTISGARH, BILASPUR DB: HON'BLE I. M. QUDDUSI 85 HON»BLB G. MINHAJUDDIN, JJ APPELLANTS: RBSPONDENTS: APPBLLANT: RE8PONDENTS: M.A(C1 No. 221/2010 Kaatibai and two otiiers Vs. Noharram aad ofhers M.AtCl No. 242/2010 Noharram Vs. Kaiitibai and otliers MISC. APPBALS UNDBR SBCTION 173 OF THB MOTOR VEHICLE8 ACT, 1988 INN^ Appearance: Mr, P.P. Sahu, counsel for the appellaats/clamiaiits m M.A(C).No.221/2010. Mr. Malay Bhadun, counsel for fhe Appellaat in M.A(C). No.242/2010. Mr, Saurabh Shanna, counsel for respondent no.3 ia M.A(C), No. 221/2010 & respondent no.5 in M.A(C). 242/2010. Per I.M. QUDDUSI. J. ORAL ORDER (24.08.2011) 1. Siace bofh fhese appeals have been filed agaiast fhe impugned award dated 22.01.2010 passed ia Claim Case No.54/2009 by the Addl. Motor Accident Clabns Tribiinal, Bemetara, Distdct Durg (C.G), fhey are beiag disposed ofby tliis common order. M.A(C).No. 242/2010 has been ffled by the owner of the Tractor- Trolley challengmg fhe award dated 22.1,2010 so far as it relates to fastening of Uability to pay conipensation on hioi ^y^ ,.^' ..•^.. ^y'T^ ; f^^gg^ 1 ^sy£%i ^'•v'y q^ whereas M.A(C). 221/2010 has been ffled by the claimants for enhartcenient of fhe amount of coinpensation. Brief facts of fhe case as per the version of the claunaats are that on 07.05.2009 one Tractor bearing Regn.No.C.G.10- D/2897 8& TroUey No.C.G.10-D/2897 which were being driven by Non-appUcaat no.2 Takeshwar in a i-ash and negUgent maaner dashed the motorcycle, as a result ofwhich, Maaharaa who was piUion rider of fhe said inotorcycle died ta fhe said accident, At the tiine of accident, the deceased was aged about 46 years; he was working as lineraaa ia Chhattisgarh Electricity Board aiid was drawiag the raonfhly salary of Rs, 19721/-. The claimaats beiag legal representatives/dependents of fhe deceased have filed Clami Petitiou u/s 166 of tlie Motor Vehicles Act on vadous heads. The learaed Clainis Tribunal has framed the question as to whefher fhe accident was caused when Tractor beanng Regn,No. C.G.10-D/2897 driveu by non-appHcao.t no.2 in a rash and negUgent maiiner dashed the motorcycle. The Tribunal has aaswered fhat fhe accident was the result of the coutributoty negligence equally on fhe part of bofti fhe drivers aad the deceased Maharaa died ia the said niotor accident. It has worked out fhe total loss ofdependency as Rs,15,79,656/- and after considering the extent of negUgence of fhe two drivers to be 50:50 has fiixed the coinpensation as Rs.7,89y828/-. Besides tiiis, tlie Tribuual has also graated Rs.12,500/- over fhe other heads aad the total amount of coinpensation was fixed as Rs,8,02,328/- which the clamiants are entifled to receive froni fhe non-appUcaats jotatly or severaUy. ; 4. We have heard learaed counsel for fhe pardes aad have also gone fhrough fhe records of fhe Tribunal. S. A perusal oftiie records oftlie Tribuual shows tiiat there is no evidence regardiag contdbutory negligence aad fhe deceased was sittiag as piUion nder on the raotorcycle. Where a person was injured or died as a result of negligence on the part of two or inore wrongdoers, it caa be said fhat fhe person was iajui'ed or died on account of fhe coinposite negUgence of those wrongdoers. Therefore, it coiild be a case of composite negUgence aad not contdbutory negUgence. 6. In case of T.0. Anthany Vs. Karvarnan and athers (2008) 3 SCC 748, Hon'ble fhe Apex Court has laid down fhe iaterpretation of composite negUgence aad conta'ibutory negUgence, Paras 5, 6 & 7 are relevaiit here aad quoted as under, "5. The Tribunal assuHied fhat the extent of negligence of the appeUaat aad fhe first respondent is 50:50 because it was a case of coinposite negUgence, The Tribunal, we Guid, feU into a common error committed by several tdbunals, ia proceediag on tlie assumption fhat coniposite negligence and contdbutoiy negUgence are fhe saaie. In aa accident involvin.g two or more vehicles, where a fhird party (ofher thaa the drivers aad/or owners of the vehicles iavolved) clauns damages for loss or iajuries, it is said that conipensation is payable in respect of fhe couiposite negUgence of fhe dnvers of fhose vehicles. But ia respect of such aa accident, if fhe claim is by one of fhe drivers hiaiself for persoual uijuries, or by fhe legal heirs of one of fhe drivers for loss on account of his deafh, or by fhe owner of one of the vehicles in respect of daaiages to his vehicle, fhen tlie issue that arises is not about fhe composite ^ \ ^ negUgence of all the drivers, but about fhe contributory negUgence offhe driver conceraed. 60 "Composite Be_dligenceM refers to the neffliffeace on the part of two or more persoiis. Where a persoa is injured as a result of i&effligei&ce 011 the part of two or ixiore wronfidoers, it is sald that the person was iajured 011 account of the composite negliffence of those wroaffdoers. la such a case, e^jch wrong doer is Jointly and severaUy liable to the iffliured for payanent of the eutlre damaffes aiid the isijuyed person has the choice of proceeding afiaiast all or aay of them. Ia such a case, the iaiured need iiot establish the extent of respoasibility of each wrotigdoer separatelv, nor is it iiecessarv for the court to determine the extent of liability of each wyoaffdoer separately. On fhe other haiid where a person suffers iajury, partly due to fhe negUgence on fhe part of aaoth.er person or persons, aad parfly as a result of his own negUgence, fhen the negUgence on fhe part of fhe uijured which contdbuted to the accident is referred to as his contdbutory negUgence. Where the uijured is guilty of soiae negUgence, his clami for dainages is not defeated nierely by reason of fhe negUgence on his part but fhe damages recoverable by him m respect of the iajuries staad reduced ia proportion to his contdbutory negUgence. (Emphasis supplied) 7. Therefore, when two vehicles are involved ia aa accident, and one of fhe drivers claims corapensation froni fhe ofher driver allegiag negUgence, aiid fhe other driver denies negMgence or claims th.at fhe iajured claiiaant himself was negUgent, fhen it becoines necessaiy to consider whefh.er tlie mjured claimaat was negligent and tf so, whefher he was solely or partly responsible for fhe accident aad fhe extent of his responsibUity, fhat is, his contributory negUgence. Therefore, where fhe iajured is himsetf partly Uable, tlie prmciple of "coniposite negUgence" will not apply nor can. there be aa autoniatic iaference fhat fhe negligence was 50:50 as has been assunied ia fh.is case. The Tribunal ought to have examiaed tlie extent of contiiibutory negligence of fhe appellant aad fhereby avoided confasion between cociposite negUgence and contributory negUgence. The High Court has falled to correct the said error.'? 7. Therefore, in case of coinposite negUgence, as raentioned ui Para 6 quoted above, each wrong doer is joiatly aad severally Uable to tihie clahnants for payraent of entire dainages aad the clamiants have the choice of proceeduig agamst aU. or any of fheiu. Hence, we are of fhe opiniou tliat ia the present case fhe claimaats need not prove fh.e extent of responsibiUty of each wrongdoer separately nor aiiy exigency adses for fhe Court to determine the extent of UabiUty of each wrongdoer separately. 8. In view of fhe above discussion, fhe Clalms Tribunal has committed maaifest error of law ia considermg the negUgence of fhe ofher driver (wrong-doer) to tlie extent of 50% aad reduciag it froui tlie amiount of corapensation as part of contdbutoiy negUgence. 9. Further, the Claiins Tribunal has held fhat fhere was breach of conditions of the iiisuraace policy aad has exonerated fhe Insuraace Coinpaiiy on fhe ground fhat the bricks were loaded m the TroUey attached to the Tractor aad fherefore, it has drawn an iaference that fhe Tractor & TroUey was beiag used for coxnuiercial purpose. '^^ ^ 10. In this regard, Investigating Ofiicer R.P. Siagh was examraed as N.A.W.2. He has stated ia his evidence fhat when fhe Tractor & TroUey were seized, fhe TroUey was einpty aad he found no raw bncks flierein, Though ia the PIR it was nientioned fhat raw bricks were loaded in the TroUey, but fhe contents of tfie FIR were not proved by the scriber aad it was nobody's case tliat fhe bricks were loaded io. tlie Trolley, On fhe otih.er haad, fhe scriber of fhe FIR namely Shiv KumLar (A.W,2) has stated ia his cross exaaiiaation that the Tractor-TroUey was eiapty aiid he has denied the suggestion fhat at fhe tiine of accident, fhe bricks were loaded on tiie Tractor-Trolley. Even ia his cross examination, nofhuig was asked regarding loadiiig of bricks aad fhe case of fhe owner was fhat the Tractor-TroUey was coiniag after getting it repaired io. the workshop where the welding work was done. Therefore, the substaative evidence came before tlie Court was that the Tractor-Trolley was einpty at the tmxe of accident aiid even for ttie sake of arguinents, tf it is presuiaed fhat fhere were raw bricks, tlie purpose ofloadiag ofraw bricks was not nientioned, No body has proved ttiat it was being used for commercial purpose. Even fhe raw bricks could be used for agricultural purpose fhat is for construction of piimp house or mad etc. However, this is not fhe case of aay of the parties. Therefore, it cairaot be said fhat the Tractor-TroUey was used ia breach ofconditions ofiasuraDce poUcy. In view of the above discussiotL, we are of the opiaion tliat fhe learaed claims Tribunal has wrongly fastened fhe Uability upon the owner/appeUaat to pay conipensation aiid it is fhe Insurance Compaay which is Uable to pay compensation. .^^^^•^ f{'l,l~^ i "a!^'y^ ^:^y d 11. Witii regard to fhe quaiituin, we found tliat fhe Tribunal has not seen fhe future prospects of fhe enhaacement of salary as the age of fhe deceased was about 46 years aad he was a permaaent einployee of Chhattisgarh Electdcity Board. Thereforc, considering the future prospects of mcome of fhe deceased at least 30% was liable to be added, as laid down by Honyble fhe Apex Court ia case of Sarla Verma (Sfnt.) -vs' Delhi Transport Carparatian cmd anather reporfed in (2009) 6SCC 121. 12. Learaed counsel for the msurance compaay at fhis stage subiaits fhat compassionate appoiatment was granted aad that was not under consideration, He has placed reUaace on Bhafera Beas SXanc&geinent Beard -Vs- Ssnt. Kcmta Agrcuval Ss ofhers, 2008 AJR SCW 5256. However, nothiag like was pleaded in. its wntten stateiaent before the Tribunal. Siace leamed counsel for fhe appeUants/claimants subnuts Uiat he wiU not press for addiag 30% towards future prospects, we are not considermg tihis aspect at fhis stage aiid only confine fhe reUef to fhe extent fhat reduction of 50% by fhe Claims Tribunal as part of contributory negUgence was bad ia law as at ftie niost it could have been fhe case of coniposite negUgence ao.d not conti'ibutory negligence, However, as discussed above, tliere was no evidence on record to prove fhe contiibutory negUgence, 13. Therefore, we allow bofh the appeals, The appeUaiit-o^mer is exonerated froia fhe liability to pay fhe conipensation and the amount of compensation is enhanced to Rs. 15,79,656/" as total loss of dependency aiid further we also graat a sum of Rs.12,500/- over the ofher heads ttiat has ah-eady been iBaa^vss'^sff sy sc^s^ yr. ,:/ -•• ??-^'' 14. awarded by fhe Clamis Tribunal, Thus, fhe total axaoiint of compensation would come to Rs, 15,92,156/- which the claiaiants are entitied to receive fi'oin tih.e Insiiraace Coinpaay. The said aaioiint shall also cany siinple iaterest @ 6% per annum from the date of filiag of the clalm petition tiU its payment is made, The amount deposited by fhe AppeUaat owner shall be refunded. However, if fhe whole or aay part of fhe sum has already been disbursed to fhe Claimaats, it will be open for tlie owner to reaUze the said amount from fhe Insuraace Compaiiy. No order as to costs. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge Rao