1. The present appeal has been filed against the judgment and award dated 07.02.2002 passed by the Additional District & Sessions Judge, Court No.6, Bareilly / Motor Accident Claims Tribunal, Bareilly in M.A.C.P. No. 738 of 1999 by which the appellant (Oriental Insurance Co. Ltd.), who is the insurer of three wheeler No. UP-25/9737, has been directed to deposit the entire awarded amount of Rs. 2,69,000/- on the claim petition preferred by the legal representatives of deceased (Mahendra Singh).
2. According to the claimant's case, Mahendra Singh (the deceased), aged about 20 years, was traveling in three wheeler No. UP-25/9737 on 13.10.1999 when, at about 7:45 A.M., the three wheeler met with an accident with a Bus No. UP 25/6998, resulting in serious injuries to him to which he succumbed later in the hospital. It was claimed that the three wheeler as well as the Bus was being driven in a rash and negligent manner.
3. The Tribunal framed various issues. It came to the conclusion that the bus and the three wheeler were being driven in a rash and negligent manner. It therefore found that the accident was an outcome of composite negligence of both the vehicle drivers. It found that the three wheeler was responsible to the extent of 30% whereas the bus driver was responsible to the extent of 70%. The Tribunal assessed the compensation at Rs. 2,69,000/- and directed the appellant, who was the insurer of the three wheeler, to deposit the entire awarded amount of Rs. 2,69,000/-.
4. The appeal was admitted and notices were issued to the respondents 1 to 6. Service of notice on respondents 1, 2, 3 and 6 was declared sufficient by the officer on special duty, as would be apparent from the order dated 21.07.2010 recorded in the order-sheet. In respect of respondents 4 and 5 fresh notices were issued. Subsequently, by order dated 01.03.2012, service of notice on respondents 4 and 5 was also declared sufficient.
5. Sri Arvind Kumar appeared on behalf of the appellant (the Insurance Company) whereas Sri Rahul Chaudhary appeared on behalf of the respondents 1, 2 and 3. Nobody appeared on behalf of the respondents 4, 5 and 6.
6. Sri Arvind Kumar did not assail the findings recorded by the Tribunal on various issues i.e. composite negligence of the vehicles involved in the accident, the quantum of assessment payable, etc. He, however, submitted that as the negligence of the three wheeler driver was found to the extent of 30% whereas the negligence of the bus driver was found to the extent of 70%, the direction of the Tribunal to the appellant, who was the insurer of the three wheeler, to deposit the entire awarded amount was wholly unjustified, inasmuch as, it ought to have been limited to the extent of 30% of the awarded amount. In the alternative, it was submitted that, in any case, the appellant (the Insurance Company) ought to have been given liberty to recover 70% of the awarded amount from the bus owner and since such liberty was not provided by the award, the award requires modification.
7. Sri Rahul Chaudhary, the learned counsel for the claimant-respondents, submitted that in a case of composite negligence, the liability of the owner / driver of the vehicle involved in the accident is that of a joint tort-feasor. As joint tort-feasors are jointly and severally liable for the compensation therefore the Insurance Company cannot complain about the direction given by the Tribunal to deposit the entire awarded amount even though the negligence of the three wheeler driver, the insurance of which was taken by the appellant, was assessed at 30%. Sri Rahul Chaudhary placed reliance on a Division Bench decision of this Court in the case of U.P. State Road Transport Corporation, Ghaziabad v. Smt. Rajani and others reported in 2007 (2) AWC 1867, wherein it was held that when an accident takes place on account of composite negligence of two or more motor vehicles, the claimant is entitled to proceed against all or any of the joint tort-feasors for full compensation for the injuries suffered or death caused as the liability of joint tort-feasors is joint and several. In that judgment, it was further held that while directing the payment of compensation to the victims of legal representatives of deceased of motor accident arising out of composite negligence of two motor vehicles, it is the duty of Claims Tribunal to apportion and specify the respective liability of owners or drivers or insurer of vehicles involved in the accident to the extent of damage contributed by them provided they are impleaded and heard by tribunal and further to explore the feasibility as to how the easy payment of such compensation can be made to the victims or legal representative of deceased victims of motor accident. In the said case, it was also held that the owners/insurers of vehicles covered by valid insurance policy or Government or Corporation like U.P.S.R.T.C., can be directed to make payment of entire amount of compensation and thereafter realise from owner of another vehicle involved in the accident caused due to composite negligence of two or more vehicles.
8. Relying on the aforesaid judgment, Sri Rahul Chaudhary submitted that since the instant case is a case of composite negligence, therefore, the liability of the three wheeler owner as well as the bus owner was joint and several and the Tribunal was justified in directing the Insurance Company, which was the insurer of the three wheeler, to deposit the entire awarded amount. It was further submitted that the claimant-respondents would have no objection if the Insurance Company is given a right to recover 70% of the awarded amount from the bus owner.
9. Having considered the submissions of learned counsel for the parties and on perusal of the record, this Court finds that there is no dispute between the parties that the accident in which the deceased died was an act of composite negligence of the three wheeler as well as the bus driver. In the case of T.O. Anthony v. Karvarnan & Ors. Reported in (2008) 3 SCC 748, the Apex Court observed as follows:-
"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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer 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 of 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."
10. From the aforesaid law, it is clear that in a case of composite negligence, each wrong doer 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. The case of composite negligence, therefore, stands on different footing as that of contributory negligence. This court in the case of U.P. State Road Transport Corporation, Ghaziabad v. Smt. Rajani and others (supra) had taken a view that in cases of composite negligence, it is open to the Tribunal to explore the feasibility as to how the easy payment of such compensation can be made to the victims or legal representative of deceased victims of motor accident. This Court had also held in that case that the Tribunal can direct the Insurance Company to make payment of entire amount of compensation and thereafter realise from owner of another vehicle involved in the accident.
11. In view of the aforesaid position, this Court does not find any illegality in the award passed by the Tribunal to the extent that it directs realisation of the entire awarded amount from the insurer of the three wheeler even though its negligence has been assessed to the extent of 30%. However, the Tribunal fell in error by not providing right to the insurer of the three wheeler to recover 70% of the awarded amount from the bus owner in view of the finding recorded by it that the bus owner was responsible to the extent of 70% in the accident.
12. For the discussion made above, the appeal is partly allowed. The award dated 07.02.2002 passed by the Additional District & Sessions Judge, Court No.6, Bareilly / Motor Accident Claims Tribunal, Bareilly in M.A.C.P. No. 738 of 1999 is affirmed subject to the modification that the appellant (the Insurance Company) would have the right to recover 70% of the awarded amount from the owner of Bus No. UP-25/6998.
Order Date :- 18.4.2014 Sunil Kr Tiwari