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Judgment
Mehta, J.—The respondents-claimants are the heirs and dependents of Bhikhabhai Talsaji. He was the owner of a Matador station-wagon bearing No. GTD 3999 which was driven by his driver Chikabhai Lakhabhai. The motor vehicle accident occurred near Bhimkundi Talavadi between the Matador station-wagon and the Bus of the appellant - S.T. Corporation bearing No. GTD 5862. As a result of the said accident the owner of the station-wagon Bhikhabhai Talsaji died. His heirs and dependents filed a claim case before the Motor Accident Claims Tribunal against the S.T. Corporation.
The Motor Accident Claims Tribunal came to the conclusion that the drivers of both the vehicles were equally negligent and responsible for the accident for the head-on collision. The Tribunal also held that the negligence on the part of the two drivers would be composite negligence and that there cannot be any question of slashing down compensation amount payable in proportion to the negligence of the driver of the vehicle in which he was travelling. In that view of the matter, the Tribunal awarded full amount to be recovered from the appellant-S.T. Corporation.
The learned counsel for the appellant-S.T. Corporation has submitted that qua both the drivers of both the vehicles the negligence is contributory negligence and not composite negligence and the owner of the vehicle and employer of the driver would be vicariously liable in the same position as the driver; and his heirs and dependents cannot claim to have full amount recovered from the driver and owner of the other vehicle.
Reliance has been placed on a Division Bench judgment of this court in the case of Kusumkunverben w/o Narpatsinh Ramsinh Zala v. Umarbhai Kamaluddin Sipoy, 1981 GLR 910 (at page 916, para 38). In that case the vehicles involved were scooter and S.T. bus and the owner of the scooter was the pillion rider. The Division Bench observed that if a third party had filed a case against the scooter driver Pinakin for his tortious act, the deceased or his legal representatives would have been vicariously liable for the tortious act of Pinakin. The point that was raised before the Division Bench was whether this vicarious liability would extend to the contribution of Pinakin in the negligence. The Division Bench held that if there had been a third party, vicarious liability would have extended if Pinakin had contributed to the negligence, and the following question was posed:
"The question is whether the heirs and legal representatives of the deceased who have filed the claim application should be saddled with the deduction for the tortious act of Pinakin which would vicariously extend to the deceased and consequently to the legal representatives of the deceased?"
The Division Bench relying on the view taken in Winfield and Folowicz on Tort held that the claimants would be burdened for the tortious act of Pinakin even though they were the applicants. In that case Pinakin, the scooter driver, was held to be negligent to the extent of 25% and, therefore, there was resultant reduction in the total amount to be awarded to the extent of 25 per cent.
This is a direct judgment which covers the point and following the same we also hold that there has to be reduction of the Award against the S.T. Corporation to the extent of apportionment of the negligence of the driver of the deceased who is held equally negligent as the S.T. Bus driver. Consequently the Award will have to be reduced by one-half. The Tribunal has passed an Award for a sum of Rs. 72,000/- with interest and cost against the S.T. Corporation. This will have to be reduced to one-half i.e. Rs.36,000/- with interest and proportionate cost.
In the result, the appeal is partly allowed, and the judgment and order of the Tribunal is modified by reducing the amount of compensation by 50%, with interest and proportionate costs. There would be no order as to costs of this appeal.