FA/4940/2001 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4940 of 2001 With FIRST APPEAL No. 4935 of 2001 With FIRST APPEAL No. 4997 of 2001 With FIRST APPEAL No. 4938 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MEHULBHAI SURENDRABHAI SHETH - Appellant(s) Versus ORIENTAL INSURANCE CO. LTD. & 2 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3 MR SHALIN N MEHTA for Defendant(s) : 1, NOTICE SERVED for Defendant(s) : 2, DELETED for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE FA/4940/2001 2/22 JUDGMENT Date : 07/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These appeals arise out of a common judgment and award rendered by Motor Accident Claims Tribunal, (Ahmedabad) on 27.7.2000 in Motor Accident Claim Petition Nos.3,4,5 and 6 of 1996. These petitions arose out of an accident that occurred on 21.10.1995 at about 8.00 p.m., on National Highway No.8 near Sandhana. Maruti Van No.GJ-1-4073 going from Ahmedabad to Baroda side and truck no.PBM-7687 going from Baroda to Ahmedabad side collided with each other which resulted in death of one Surendrabhai Sheth and his wife Kanaklataben travelling in Maruti Van. Maruti van was being driven by Malaykumar suffered injuries. His nephew Purva also suffered injuries who was also travelling in the van. 1.1. M.A.C.P.No.6 of 1996 was preferred for death of Surendrabhai, M.A.C.P.No.5 of 1996 was preferred for death of Kanaklataben, M.A.C.P.No.4 of 1996 was preferred for injuries suffered by Malaykumar, M.A.C.P.No.3 of 1996 was preferred for injuries suffered by Purva through his natural guardian Shashankbhai. 1.2. The claimants preferred the claim petitions against the driver, owner and insurer of the truck FA/4940/2001 3/22 JUDGMENT but did not join the driver, owner and insurer of the Maruti van as party opponents before the Tribunal. The driver and owner of the truck preferred not to file any written statement or to lead any evidence. The Insurance Company filed the written statement more or less in form of denials with a specific plea that the truck was not involved in the accident at all and that the accident must be appropriately proved. Without any other pleading on occurrence, the Insurance Company also took an alternative plea that the driver of the van also contributed to the cause of the accident. 2. Considering the evidence led before it, the Tribunal came to a conclusion that drivers of both the vehicles involved in the accident were equally negligent and contributed equally to the cause of the accident. The Tribunal, ultimately, awarded compensation of Rs.10,50,500/- for death of Surendrabhai, Rs.1,00,000/- for death of Kanaklataben, Rs.1,00,000/- for injuries suffered by Malaykumar and Rs.50,000/- for the injuries suffered by Purva with proportionate costs and interest @ 9% p.a., from the date of application till satisfaction of the award. The Tribunal, however, observed in respect of all claimants that the claimants would be entitled to recover from and the opponents would be liable to pay only 50% of the compensation awarded to the claimants as the claimants have not joined the driver, owner and insurer of the Maruti van as party opponents. FA/4940/2001 4/22 JUDGMENT 3. The original claimants have preferred these appeals mainly on the ground that the Tribunal has erred in holding that both the drivers were equally negligent and contributed equally towards the cause of accident. First Appeals No.4940, 4935, 4997 of 2001 are preferred on an additional ground of challenging the finding of the Tribunal that the claimants are entitled to recover from and opponents are liable to pay only 50% of the compensation awarded as the driver of the Maruti van was responsible to the extent of 50% and he has not been joined as a party opponent in the claims. This challenge is on the ground that the claims other than the one by Malaykumar for injury are for death or injury to passengers of Van and it is a case of composite negligence of both the drivers qua these claimants and their liability would be joint and several and it is for the claimants to decide whom to recover the compensation from. 4. We have heard learned advocate Mr.Sandeep C Shah for the appellants and learned advocate Mr.Shalin Mehta for the respondents. We have also examined R & P in light of what has been submitted to us by learned advocates. 5. Learned advocate Mr.Sandeep Shah for the appellants submitted that the Tribunal committed an error in holding that the Maruti driver contributed equally towards the cause of accident as the truck FA/4940/2001 5/22 JUDGMENT driver. He submitted that the Tribunal has overlooked the positive oral evidence led by Malaykumar on how the accident occurred. Mr.Shah submitted that Malaykumar was the best person to depose on the question as he was himself driving the Maruti van. Against this, Mr.Shah submitted that the truck driver who also could have thrown light on question as to how the accident occurred and could have confronted or contradicted Malaykumar with a different story; if he had any to tell, has chosen not to file any written statement or to depose before the Tribunal. There is no evidence led by the opponents on question as to how the accident occurred. The Tribunal, therefore, committed an error in holding that driver of the Maruti van contributed towards the cause of accident to the extent of 50%. 5.1. Mr.Shah submitted that if the panchanama of the place of incident is seen, it makes it clear that after the impact, Maruti van was pushed backwards by almost 90-100 ft., which would show the speed and the momentum with which the truck was travelling. Malaykumar has deposed that he was driving his car on the correct side of the road at moderate speed and the truck came on wrong side and dashed against the Maruti van. This aspect has remained uncontroverted and uncontradicted. Despite this, the Tribunal has held the drivers to be equally responsible for the mishap. Mr.Shah submitted that the Tribunal has also overlooked the fact that opponent no.1 was driving a heavier and larger vehicle as against Malaykumar who FA/4940/2001 6/22 JUDGMENT was driving the Maruti van. In such situation, the person in charge of a heavier vehicle owes greater duty of care and caution and, therefore, the driver of the truck ought to have been held solely responsible for the accident or in the alternative, to a greater extent. 5.2. Mr.Shah submitted that it was not open for the Tribunal to observe that the claimants can recover only 50% of the awarded amount as they have not joined the driver, owner and insurer of the Maruti van as party opponents. It is a case of composite negligence so far as the claims for death of Surendrabhai, Kanaklataben and injury to Purva are concerned. 5.3. He submitted that in case of composite negligence, it is not necessary that the driver, owner and insurer of all the vehicles involved in the accident must be made a party and that no apportionment is required to be made in case of composite negligence. 5.4. In support of his submissions, Mr.Shah relied on the decisions in case of Shardaben Nitinrai and another Vs. Gujarat State Road Transport Corporation, Ahmedabad and others (1981 GLR 1258), Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others (2002 (3) GLR 2763, Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and another (AIR 2003 SC 4182), Devsingh Vs. FA/4940/2001 7/22 JUDGMENT Vikramsingh and others (2008 ACJ 393), Durga Singh and another Vs. Janardan Singh and others (2008 ACJ 250), Uma Rathore and others Vs. Om Prakash and others (2008 ACJ 310), Bhanuben P.Joshi and others V/s Kantilal B.Parmar and another (1994 ACJ 714). 6. Learned advocate Mr.Shalin Mehta on behalf of the insurer of the truck submitted that though driver of the truck has not filed any written statement and has not deposed before the Tribunal, there is sufficient evidence on record to show that it was not the negligence of the truck driver alone that the accident has occurred. He has drawn our attention to the panchanama drawn of the place of incident which shows that the accident occurred in the middle of the road. The panchanama also indicates that the width of the road is 50 ft., and that after the incident, the truck was found to be lying outside the road on its correct side along with Maruti van. Mr.Mehta, therefore, submitted that the theory advanced by Malaykumar in his deposition as well as his pleadings that he was driving the Maruti van on its correct side at a moderate speed gets falsified. The fact that the truck was lying on its correct side along with the Maruti van would indicate a possibility of Maruti van having gone on wrong side and accident having occurred. Mr.Mehta, therefore, submitted that the Tribunal was justified in holding that both the drivers equally contributed to the cause of accident and, therefore, may not be interfered with. FA/4940/2001 8/22 JUDGMENT 6.1. Mr.Mehta, however in fairness, submitted that he is not able to support the direction of the Tribunal that all the claimants would be entitled to recover only 50% of the award as they have not joined the driver, owner and insurer of the Maruti van as party opponents. He submitted that the awarded compensation can be reduced to half only in claim by Malaykumar as he was himself driving the vehicle and is found to be responsible to the extent of 50% by the Tribunal. He submitted that so far other claimants are concerned, it would be a case of composite negligence of both the drivers and the liability would be joint and several. Non-joining of driver, owner and insurer of Maruti van in such a situation could not have affected the claimants' right to compensation. He, therefore, submitted that appropriate orders may be passed. 7. Having carefully considered rival side submissions, we would first like to examine the question of negligence. 7.1. In this regard, if deposition of Malaykumar Exh.67 is seen, he says that he was driving the Maruti van at the relevant time. He was driving the Maruti van on the left side of the road at a moderate speed observing all the rules. When he reached near the place of incident, on-coming truck tried to over- take the vehicle going ahead of it and in doing so, it came on its wrong side and collided with Maruti FA/4940/2001 9/22 JUDGMENT van. The truck was being driven at such a high speed by opponent no.1 that the Maruti van was pushed back at about 100 ft. He has been cross-examined on this aspect but nothing turns on it. Suggestions are made in absence of any pleading or material. 7.1.1 Another piece of evidence on record which may help us in examining the question of negligence is panchanama which is at Exh.63. The panchanama indicates that the road was located east-west. On the east was Nadiad/Baroda and on west Kheda/Ahmedabad. The truck was travelling from Nadiad to Ahmedabad side and Maruti van was travelling from Ahmedabad to Baroda/Nadiad side. Differently put, the truck was travelling towards west and the van was travelling towards the east. The panchanama indicates further that the place of incident was in the middle of the road. It also indicates that there were tyre marks running for about 90 ft., running from place of incident towards south-west where the truck and Maruti van were found lying at a distance of about 90 ft. The truck was lying in an oblique position with its right rear wheel on the edge of the road and rest of the three wheels outside the road. The Maruti van was found clubbed with the truck in its front. Damage to the truck was in the front whereas the Maruti van was damaged in front and was totally smashed. 7.2. If the above two pieces of evidence are seen, it is clear that what Malaykumar has stated in his deposition that he was driving his van on correct FA/4940/2001 10/22 JUDGMENT side of the road at a moderate speed is not a correct version because the panchanama shows that the place of incident is in the middle of the road. It is true that the panchanama would indicate the situation as it existed after the accident and the place of incident will have to be only relied upon the person who shows the place of incident who has not been examined here. But in the instant case, the fact situation is such that what is stated in the panchanama about the place of incident can safely be inferred and accepted to be truthful and correct version. We say this for the reason that not only the place of incident is shown by the complainant but the panchas had noticed and recorded in the panchanama the fact that there were wheel marks running for a distance of about 90 ft., from the place where the truck was lying to a place in the middle of the road as one goes towards east. The damage to the vehicles indicate that it is a case of head-on collision. If the collision was sideways or on the corners, the position of the vehicles would have been different and damage found on the vehicle would also have been on different location on body. Here the damage to the truck is in the middle of the front portion and both the head lights are damaged. Maruti van is totally smashed from front. This leads us to infer that it is a clear case of head-on collision. After the impact, the truck has travelled for a distance of about 90 ft., pushing the Maruti van backwards. A vehicle when being driven in its gear, if it is pushed backwards, the wheels of the vehicles would not be free to roll FA/4940/2001 11/22 JUDGMENT backward as they would be engaged with gear. The resultant effect would be that there would be scratch marks on the tar road because of rubbing of the tyres against a tar road. This would show the place from which the vehicle was pushed backwards. That has to be the place where the impact has taken place and that is how we accept what is recorded in the panchanama that the place of incident is in the middle of the road. The wheel marks travel for a distance of about 90 ft., where the truck is found to be lying. This would lead us to conclude that the incident occurred in the middle of the road and that it is a case of head-on collision meaning thereby, that both the vehicles were travelling in the middle of the road. This would falsify or disprove the case of Malaykumar that he was driving the Maruti van on its correct side of the road and that the truck came on wrong side and dashed against the van. We, therefore, do not find any error to have been committed by the Tribunal in holding that both the drivers contributed to the cause of accident and were responsible for the mishap. We are unable to accept the contention on behalf of the appellant that no negligence could have been contributed to the driver of the van and we turn it down. 7.3. We may, however, hasten to add that we do not mean to uphold the finding of the Tribunal that both the drivers equally contributed to the cause of the accident. We confirm the view of the Tribunal only to the extent that both the drivers contributed FA/4940/2001 12/22 JUDGMENT towards the cause of accident. To what extent is a question that we propose to deal now. 7.4. It is an admitted position as recorded in the panchanama that width of the road was 50 ft., besides the shouldering on either side. It is also found and held by us that the impact took place in the middle of the road. The driver of the truck has not deposed or filed any written statement to show as to how the accident occurred. The driver of the van Malaykumar has deposed that he was driving the van on the correct side of the road when the accident occurred which we have not accepted as discussed hereinabove. The fact remains, therefore, that the accident occurred in the middle of the road for reasons which are not placed or found on record. The fact, however, remains and has to be accepted that both the vehicles collided with each other head-on in the middle of the road for whatever reasons. It is a settled position of law that a person driving a heavier vehicle owes the greater degree of care and caution than a driver of a lighter vehicle. Here both the vehicles were travelling in the middle of the road either in absence of any reason or for the reasons which are not brought on record. Matter does not end there. After the impact, Maruti van is pushed back by about 90 ft. This would indicate that the truck was being driven at a very high speed. The truck was being driven at such a high speed that even the Maruti van which was travelling in opposite direction was pushed backwards by 90 ft. FA/4940/2001 13/22 JUDGMENT 7.5. The speed of the truck, its size and weight and resultant momentum, all must have played their role and all these factors ought to have been kept in mind by the driver of the truck while driving the truck on a national highway. It is expected of every driver to drive the vehicle in a manner that he is able to meet with contingencies without casualty. In the instant case, the driver of the truck has not been able to stop the vehicle even if the van had abruptly come in the centre of the road. Similarly, he was unable to swerve the truck to avert the collision. He was not able to stop the vehicle even after the collision as the vehicles have travelled for about 90 ft., after the accident. The tyre marks on the road as recorded in the panchanama would support to our conclusion that even after the impact and application of brakes, the vehicles travelled for a distance of about 90 ft., from the place of incident. 7.5. The foregoing factors would show that the driver of the truck, though in-charge of a heavier vehicle, did not show expected degree of care and caution. He was travelling on the crown of the road when the accident occurred, he was travelling at an excessive speed, he could not stop the vehicle to avert the accident nor he could swerve the vehicle to avoid the collision. His contribution towards the cause of accident, therefore, was much greater than the contribution of the driver of the Maruti van. The FA/4940/2001 14/22 JUDGMENT driver of the Maruti van though claims to be driving on the left side of the road, was driving on the crown of the road at the time of the impact and, therefore, he has also contributed towards the cause of accident. In our view, therefore, keeping all these aspects in mind, the contribution of the driver of the truck towards the cause of accident can be assessed at 80% and that of the driver of the Maruti van – claimant Malaykumar can be assessed at 20% as against 50% - 50% assessed by the Tribunal and we accordingly hold that the driver of the truck was responsible for the accident to the extent of 80% and claimant Malaykumar was responsible to the extent of 20% for the cause of accident. 8. Having dealt with the question of negligence, we are now called upon to address ourselves on question as to whether the Tribunal was justified in holding that since both the drivers were equally negligent in driving their vehicles and since Malaykumar who is petitioner no.2 in M.A.C.P.No.6 of 1996 and 5 of 1996 and petitioner in M.A.C.P.No.4 of 1996, the opponent no.1,2 and 3 (driver, owner and insurer of the truck) are liable to pay only half of the compensation amount and the petitioners are entitled to recover the said amount from opponent nos.1,2 and 3? The next question is whether the Tribunal was justified in slashing down the awarded amount by 50% in case of Purva – minor travelling in the Maruti van for this very reason? FA/4940/2001 15/22 JUDGMENT 8.1. In this regard, we may observe that Malaykumar was driving the Maruti van at the time of accident and for injuries suffered by him, he has claimed compensation by filing M.A.C.P.No.4 of 1996. So far as that matter is concerned, the Tribunal could have slashed down the award as claimant Malaykumar himself was found responsible for the accident as per the Tribunal. It would be a case of contributory negligence and Malaykumar having contributed to the cause of accident, his award could have been slashed down to the extent of his contribution to the cause of accident. 8.1.1. The Tribunal held both the drivers equally responsible for the accident. But as discussed above, we find that driver of the truck contributed to the extent of 80% towards the cause of accident and Malaykumar's contribution was to the extent of 20%, the award now will have to be slashed down by 20%. 8.2. But so far as the other claimants were concerned, claims are for the death of Surendrabhai, death of Kanaklataben in which besides Malaykumar there were two other claimants. The compensation was claimed for death of Surendrabhai and Kanaklataben who were merely passengers in the van. For them, the accident occurred because of composite negligence on part of the drivers of both the vehicles. The drivers of both the vehicles, would, therefore, be directly responsible to pay the compensation and the liability would be joint and several. The owners of the FA/4940/2001 16/22 JUDGMENT vehicles would be liable to pay the compensation vicariously and insurer would be liable to pay the compensation as indemnifiers. The liability of both the sets of driver, owner and insurer would be joint and several and it is for the claimants to decide from whom to claim the compensation. The Tribunal could not have slashed down the award by observing that since the claimants have not joined the driver, owner and insurer of the van as party opponents – the opponents – driver, owner and insurer of the truck would be liable to pay the compensation only to the extent of 50% of the awarded amount. This virtually amounts to apportioning the negligence and liability interse between the two joint tort-feasors vis-a-vis the right of compensation of the claimants for whom the accident occurred because of composite negligence of both drivers. This type of apportionment of liability interse the joint tort-feasors is impermissible. It would violate the right of the claimants of claim compensation from any one of the them as they are jointly and severally liable to pay compensation. 8.2.1. In this regard, we may refer to the decision in case of Devisingh Vikramsingh (supra) where the Full Bench of M.P.High Court observed in case of a pillion rider that if breach of Section 128 of M.V.Act does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider