National Insurance Co. Ltd. vs Banu Bibi and Others

H.K. Rathod, J.—Heard learned advocate Ms. Megha Jani on behalf of appellant National Insurance Co. Ltd.

The appellant insurance company has challenged common award passed by Motor Accident Claims Tribunal, Baroda in group of MACP No. 934/98 and allied matters decided on 11/5/2009. The claims Tribunal, Baroda has come to conclusion that there is no negligence for occurrence of accident on the part of ST driver. Therefore, opponent No. 7 and 8 driver and ST Corporation has been exonerated from its liability to pay compensation to claimants. The claims Tribunal has come to conclusion that driver of vehicle tempo No. GJ-6-U-7186 and tempo No. GJ-7-X-253 both are equally responsible for accident. Therefore, while deciding question of negligence, liability of each driver is fixed to the extent 50-50% as both are equally responsible for accident. The accident which took place on 28/3/1998, due to collision between bus owned by GSRTC, Tempo bearing No. GJ-7-X- 253, insured by appellant insurance company and tempo bearing registration No. GJ-6-U-7186 insured by United India Insurance Co. Ltd.

The appellant insurance company has challenged common award by filling group of first appeals only question of negligence and is challenged before this Court and not challenging quantum of compensation of award passed by claims Tribunal, Baroda in each claim petition.

Learned advocate Ms. Jani submitted that claims Tribunal has failed to appreciate oral as well as documentary evidence and finding on issue of negligence is erroneous. She further submitted that claims Tribunal has committed error in holding that driver of tempo bearing registration No. GJ-7-X-253 insured by appellant was negligent. The claims Tribunal has failed to appreciate contents of panchnama, which clearly demonstrate that it was tempo bearing No. 7186 which went on wrong side and stopped at a distance of 15'' from skirting of road.

She also submitted that claims Tribunal has not properly appreciated fact of panchnama which clearly established that tempo No. 253 was on its correct side. She submitted that entire evidence of FIR, panchnama, averment made in claim petitions and depositions of claimants, clearly established that accident happened only due to driver of bus applied sudden brake and tempo No. 7186 which was on correct side can not control its vehicle went on wrong side collided with tempo No. 253 coming from opposite direction and further also committed an error that tempo No. 253 went in northern direction to accident of 15'' ft from skirting of road.

She submitted that claims Tribunal has also committed an error in exonerating ST driver. She submitted that claims Tribunal has failed to appreciate that bus was in motion when accident occurred, at that occasion, it suddenly stopped, resulting in collision by tempo coming from rear side of bus. If driver of ST bus not suddenly stopped vehicle on main road between Bodeli and Dabhoi, accident could have been avoided. The claimants have sit with driver of tempo No. 7186 was proceeding at a speed of 80 to 90 km per hour that it collided with bus going ahead while trying to overtake it and as driver of bus stopped it in middle of road abruptly without any signal. Therefore, according to her submission, driver of Tempo No. 7186 is solely responsible for accident.

She submitted that claims Tribunal has committed gross error in holding that tempo No. 235 dragged tempo No. 7186 to extent of 15'' ahead. This conclusion is not supported by evidence on record more particularly on panchnama. It is an undisputed fact that tempo No. 7186 was lying at a distance of 15ft from skirting of border of road on its wrong side and was facing north direction. Had tempo No. 253 dragged or pushed back tempo No. 7186 to accident of 15'', both tempo would have stayed on right side on road facing each other. The fact that tempo No. GJ-6-U-7186 crossed road of 22ft width and skirting of 31/2 ft and went to further distance of 15ft therefrom shows that it was tempo No. GJ-6-U-7186 that was being driven rashly, negligently and at much higher speed than tempo No. 253.

She also submitted that claims Tribunal has committed gross error in holding that bus was standing on Mangal Bharti stand. She also submitted that bus was not in stationary condition, that finding of claims Tribunal is erroneous and contrary to record. She also raised contention before this Court that tribunal has committed error in drawing adverse inference against driver of tempo No. 253. Though driver have remained absent of tempo No. 253, there is a sufficient evidence on record to held that driver of tempo No. 253 was not at all negligent. She referred page 29 para 24 while making submission and reading evidence discussed by claims Tribunal of claimants Banubibi Chandodwala. She also prepared kachcha map for perusal of this Court. This Court has also considered that map while deciding this appeals. She also produced paper book where copy of FIR, panchnama, claim petition No. 934/98 and 935/98, written statement filed by insurance company in MACP No. 934/98, 170 permission given by claims Tribunal exh 34 in MACP No. 1373/98, copy of 170 application in MACP No. 1373/98. She also referring evidence of Pujiben Waghari, who was travelling in tempo No. 7186 para 26 page 31.

She submitted that FIR was lodged against driver of tempo No. 7186. She referred page 32 para 28 evidence of Satishbhai K. Chauhan, who was travelling in tempo No. 253 being an eye witness. She referred page 34 para 30 where conclusion of tribunal is there.

She also raised contention that if adverse inference has been drawn against driver of tempo No. 253, then each driver remained absent. Therefore, such adverse inference must have to be drawn against driver of ST bus. She relied upon FIR filed by ST driver and submitted that bus has been stopped all of sudden i.e. how tempo No. 7186 dashed rear portion of ST bus on driver side.

In short her submission is that, tempo No. 253 is not responsible in said accident. Therefore, finding given by claims Tribunal is erroneous in holding 50% negligence and also considering equal responsibility for accident.

I have considered submission made by learned advocate Ms. Jani and considering kachcha map prepared by her for perusal of this Court and paper book, which has been supplied to this Court as referred above and also perusing common award passed by claims Tribunal.

The brief facts of group of appeals are as under:

Before claims Tribunal, opponent No. 1, 2, 4, 5 and 7 did not remain present inspite of they are duly served with summons and contested this claim petition in any manner. The respondent No. 1 Mahebubbhai Mohammadbhai Mansuri is driver and respondent No. 2 Pirmohammad I Dangar Khadu is owner of Tempo No. 7186. The respondent No. 4 Mohammad Sabbir Najirkha Kadia - driver and respondent No. 5 Abdul Razak Rasul Khalya owner of tempo No. 253. The opponent No. 3, 6 and 8 appeared through their advocate Mr. R.S. Desai, Y. K. Pathak, Jitendra Vyas respectively. They filed reply and contested claim petitions interalia denying of averment and allegation made by claimants in this claim petition. Thereafter, issues have been framed by claims Tribunal in para 21. The claims Tribunal has recorded oral evidence of claimants in respect to each claim petition as referred in para 22. The documentary evidence produced by claimants as referred in para 22 (ii) in each claim petition. Thereafter, claims Tribunal has examined evidence of claimants.

The claims Tribunal has considered evidence of Banubibi exh 32 in respect to MACP No. 934/98. According to her evidence, accident occurred on 28/3/1998 and she was travelling in tempo No. 7186 from Dabhoi to Pavagadh along with their goods. When they were returning to Dabhoi via Bodeli, said tempo was driven by opponent No. 1 on its correct side of road. When they reached near at Bharti Bus stand, at that time, one ST bus bearing registration No. GJ-18V-1025 came from Chhotaudepur in full speed with rash and negligent manner and overtaking said tempo and going ahead. When said bus came nearer to Gamdi village, driver of bus, opponent No. 7 had stopped his vehicle without giving any side signal on middle of road, at material point of time, tempo No. GJ-6-U-7186 was following said bus and all of sudden applying brake by bus driver. He has fear of collision with bus, therefore, to avoid accident, he applied brake and trying to take his tempo from left to right side, at that time, left side portion of tempo colluded with right side portion of bus and caused accident. At material point of time, opponent No. 4 was came from Dabhoi by driving tempo bearing No. GJ-7-X-253 in full speed with rash and negligent manner and gave a dashed to bus on driver side. Thereafter, he collided with tempo No. GJ-6-U-7186 on left side and dragging said tempo to 15ft ahead and dashed with tree and bus stand. This witness has been cross examined by advocate of insurance company and advocate of ST corporation.

One witness Halimabu Master also examined before claims Tribunal vide exh 29. She has admitted that there are 14 persons. Thereafter, one Abdulbhai was examined at exh 110 in claim case No. 1439/98 who has also narrated facts of accident but he has no knowledge about day of incident, but it took place at Mangal Bharti stand, near Sankheda Bahadur bridge. He has no knowledge about number of vehicle. He has admitted that tempo was going on road, on which, ST bus came from opposite side and standing on middle of road. He has admitted that accident took place due to standing bus on middle of road. He has admitted that if bus was not stood on road, accident was not caused, who was cross examined by other side. He has admitted that there is no negligence of tempo driver in which he was sitting. He was going in tempo No. 7186. He has admitted that tempo No. 253 was not dashed with bus and tempo No. 7186 collided with tempo No. 253.

Thereafter, one Pujiben Waghari was examined exh 100 in claim petition No. 1737/98. She was also travelling in tempo No. 7186 was collided with bus and other tempo No. 253. She has admitted that tempo was coming in full speed in which, she was sitting. She admitted that bus went to left side of road, due to dashed by tempo No. 7186. She also admitted that our tempo collided with bus and due to consequently impact driver lost control over vehicle, tempo collided with another tempo coming from opposite side. She has admitted that complaint was lodged by ST driver against tempo No. 7186. She has also admitted that there is no negligence of driver of bus in this accident.

Thereafter, claimant Budhabhai was examined vide exh 101 and Sanabhai Waghela vide exh 112, Chandubhai exh 114, Ghelabhai Waghari exh 115, Vijaybhai Waghari exh 113, Ukedbhai Waghari exh 119, Naranbhai Waghari exh 111, Prakashbhai Waghari exh 118, Kesurbhai Waghari exh 120, and Pratapbhai also filed affidavit exh 121. These all witnesses giving evidence as per their knowledge and information on the basis of fact that their evidence is supporting driver of tempo in which they were sitting or travelling, but all are admitted that tempo No. 7186 was on correct side of road and another tempo No. 253 came from opposite side and gave dashed by coming wrong side and caused accident.

One Satishbhai was examined exh 28 in claim petition No. 299/2000 and narrated same facts he was cross examined by Mr. Pathak and admitted that incident took place on 28/3/1998 on straight road on place of accident, therefore, oncoming vehicle can easily see vehicle to each other. He has further admitted that on the place of accident, road is wide, therefore, two vehicle can easily pass. He was sitting in tempo No. GJ-7-X-253 and said tempo was going in moderate speed on its correct side. He has admitted that tempo No. 7186, first collided with bus from behind, which was stood ahead and due to consequently impact with bus, tempo lending towards right side and collided with tempo No. 253.

One Halimbhai Mahudawala examined exh 153 has given same evidence but he admitted that bus was stood on Mangal Bharti stand to take passengers. He also admitted that tempo gave dashed to bus from behind and dashing was so violent, tempo was in horizontal position. He also admitted that tempo No. 253 came from opposite side and collided with tempo No. 7186. He also admitted that when tempo No. 7186 was in cross on road, one tempo No. 253 was collided on middle part.

In view of aforesaid evidence which are given by passengers who were travelling in respective tempo, claims Tribunal has considered panchnama and decided question of negligence.

The claims Tribunal has considered way on which accident is occurred between three vehicle. The finding given by claims Tribunal in respect to negligence in para 30 and 31 are quoted as under:

To decided the negligence, I would like to refer the documentary evidence produced before this Tribunal. On perusal of FIR at Exh. 35, driver of bus has lodged the complaint and narrated the cause of accident. As per his contention that on a day of accident, he was going to Vadodara from Chotaudepur by driving bus No. GJ-18 V. 1025 via Bodeli to Vadodara from Chotaudepur by driving bus No. GJ-18 V. 1025 via Bodeli to Dabhoi. At about 18.45 p.m, he reached at Gamdi Chokdi and took the passengers and passing through Mangal Bharti Stand, at that time, one tempo No. GJ-6-U-7186 came in full speed and gave a dash from behind, and therefore, he lost the control over the steering and bus went to left side gutter, at the same time, one another tempo No. GJ-7X-253 came from Dabhoi side in rashly and negligently and gave a dash to tempo No. 7186 and caused the accident and persons seated in both the tempo had sustained severe injuries. On perusal of panchnama at Exh. 36, the incident took place of Bodeli Dabhoi road, near Mangal Bharti stand. On perusal of spot, blood stain was lying on middle of the road and also seen wheel mark of tempo towards northern side from middle part of the road. The pieces of mirror was also lying here and there. The road is 22 ft wide and there is 3x3'' open space on Kachha road. Rear side wheel of tempo was lying towards northern side edge of the road. Driver side body was broken due to collision with tree. The number of tempo is GJ-6-U-7186 and was Tata Company, sky blue in color and its front side cabin was separated from body and turned towards left side. Radiator & engine was severally damaged and its front side show also banned. Middle wheel of tempo was on cement stone sit. The damages caused to tempo No. GJ6-U-7186 to the sum of Rs. 25,000/-. The said tempo was going to Dabhoi from Bodeli and therefore, the tempo was stood to the extent of 15ft ahead from the bus stand. Driver side & empty side door was broken and banned one. One another tempo No. GJ-7-X-253 was stood to the extent of 7 ft. distance towards eastern side from tempo No. 7186. Due to pushing driver side door and broking the mirror, steering was rushed to outside and its front side show was banned. Radiator and other machinery was also broken and damages caused to Rs. 1.5 Lacs. The tempo is Tata company, Parrot in color. Front side body was banned and the said tempo goig to Chotaudepur from Dabhoi. The road is east to west on place of offence. On southern side, bus bearing No. GJ-18 V. 1025 was stood to 75 ft distance ahead from the place of offence and the board is Chotaudepur to Vadodara. The bus was going on its left side and one tempo No. GJ-6-U-7186 gave a hit from behind, and therefore, back side body of driver side was 5ft. pushed and three pillar was also broken. Back side & conductor side head light was broken and back side mirror door was also broken. Body and its show was pushed and front side bumper was turned towards conductor side. The damages caused to bus to Rs. 20,000/-.

Looking to the Panchnama, the position of vehicles is shown. In this accident, both the tempo was severally damaged and bus also damaged to some extent. Naturally, it is a gruesome accident. Looking to the position of vehicles as shown in Panchnama, it transpire that the said incident took place on Bodeli Dabhoi road, near Mangal Bharti stand and at the relevant time, bus was going to Vadodara from Chotaudepur and when the said bus was passing through Mangal Bhrti stand, tempo bearing No. GJ-6-U-7186 came from behind in rashly & negligent and gave a dash to bus from behind on right side corner and due to consecutively impact to bus, tempo rushed to right side, at the same time, another tempo bearing No. GJ-7-X-253 came from Vadodara side in rashness and gave a dash to tempo No. GJ-6-U-7186 and dragging the said tempo to the extent of 15 ft. ahead and caused gruesome accident. It is pertinent to note that dashing was so violent that both the tempo was severally damaged, not only this, persons travelling in both the tempo had sustained grievous injury & other caused fatal injury. Here, in this case, there are various contradiction that bus was stood and/or passing through Mangal Bharti Stand, and therefore, it is difficult to determine the true state of things. It is an admitted fact that driver of bus had stated in his complaint that bus was passing through Mangal Bharti stand and tempo No. 7186 came in rashly & negligently and gave a dash from behind and due to dashing tempo rushed to right side, at the same time, tempo No. 253 came from Vadodara side in rashness also gave a dash to tempo No. 7186 and caused the accident. However, on perusing the deposition of eye witnesses, bus was stood on Mangal Bharti stand and tempo No. 7186 came from behind and gave a dash and consecutively impact with bus, tempo No. 253 also gave a dash to tempo No. 7186 and dragging to 15 ft. ahead and caused the accident. Under the given facts and circumstances, I come to the conclusion that there is no any negligence of bus driver because at the time of dashing, bus was stood on stand, and therefore, the contention regarding the all of sudden applying break by bus driver on middle of road, and therefore, tempo No. 7186 gave a dash from behind of is not accepted at this juncture. It is on record that both the tempo drivers did not remain present before this Tribunal to explain as to how the accident had occurred and therefore, the adverse inference drawn against them and also not taken dispute regarding the involvement of the vehicles as well as accident is also not in dispute. Under such circumstances, I am of the view that it was the duty of opponent No. 1 tempo driver to driver his vehicle safely and cautiously while overtaking the bus, which was stood on Mangal Bharti Stand, and if, he do this, then he could not hit bus from behind and his vehicle could not rush to right side. However, it was also duty of opponent No. 4 tempo driver to stop his vehicle when he saw that tempo gave a dash to bus from behind and due to this dashing, tempo No. 7186 went to right side then dashing between both the tempo could easily be averted. Looking to the picture emerging from the Panchnama, I am of the view that it is a case of composite negligence of both the tempo drivers involved in this accident, and therefore, they are equally responsible for the occurrence of the accident to the extent of 50-50%. Hence, I held issue No. 1 accordingly in affirmative.

Learned advocate Ms. Jani referred certain evidence before this Court and also referred panchnama, FIR, claim petition, written statement filed by insurance company. While deciding question of negligence how accident is occurred between three vehicles, presence of three drivers before claims Tribunal is necessary, who can explain properly how and in which manner accident occurred between three vehicle but unfortunately three drivers remained absent and none stepped into witness box before claims Tribunal. So in absence of evidence of each driver of each vehicle, whatever evidence available before claims Tribunal has been appreciated including FIR and panchnama. While deciding question of negligence evidence of witness not to appreciate in peace meal manner. The submission made by learned advocate Ms. Jani relying upon some portion of evidence of respective witness and some portion from other witness and some portion from panchnama, but when claims Tribunal has to decide question of negligence between three drivers, then claims Tribunal has to appreciate evidence which are on record and not to appreciate some portion of evidence from which witness which are helpful or adverse to other side. After appreciating oral evidence of witness, FIR, panchnama, claims Tribunal has gave facts and visualize from evidence that how accident is occurred. The claims Tribunal has also considered damage caused to tempo No. 253 and damage caused to tempo No. 7186. In fact accident has been occurred when ST bus was going ahead and tempo No. 7186 coming from rear side. The ST bus was on correct side on road near Mangal Bharti stand. One witness deposed that ST bus was standing on Mangal Bharti stand but some of other witnesses are denied this facts apart from that if driver of ST bus had stopped bus all of sudden, then also if tempo No. 7186 was in moderate speed not having excessive speed and driving tempo No. 7186 keeping reasonable distance between bus then such accident could be avoided while applying brake but on the contrary dashed from rear portion of bus at right side of bus driver by tempo No. 7186 and not to control tempo No. 7186 because it was having excessive speed which suggests rash and negligent driving of driver No. 7186 and thereafter giving dashed to ST bus from rear side of right portion of bus and then to turn tempo on right side of road crossing more than middle portion of road. At that occasion, tempo No. 253 coming from opposite side having knowledge that all of sudden tempo No. 7186 turn right side came to middle portion of road and on that circumstances, if tempo No. 253 having moderate speed not excessive then driver of tempo No. 253 easily control his vehicle and to avoid accident. The impact between two vehicle itself suggested that both drivers driving their tempo in rash and negligent manner with excessive speed not controllable and due to that only accident is occurred.

This overall picture of entire evidence including FIR, panchnama, placed before claims Tribunal and that fact has been rightly appreciated by claims Tribunal. The claims Tribunal has applied mind and considered one important facts, which can not disputed by either of party that none of driver of tempo having moderate and controllable speed, otherwise, such accident could be avoided by driver of both tempo. The damage caused to tempo No. 253 came to more than 1,50,000/- and damage caused to bus comes to Rs. 20,000/-, and damage caused to tempo No. 7186 comes to Rs. 25,000/-. This damage also suggested excessive speed by both tempo driver otherwise this much damage if having controllable speed could not be caused either of tempo. Therefore, if only one tempo No. 7186 is considered to be sole negligence and tempo No. 253 not to consider negligent then such damage could not be caused, but damage caused to tempo No. 253 suggested heavy impact due to excessive speed on straight road knowing fully well that tempo No. 7186 came on middle portion of road. If tempo driver 253 was having controllable speed then he can definitely control his vehicle to avoid accident not only that to avoid heavy damage caused to tempo No. 253. So on the basis of evidence on record, itself is suggested that tempo No. 253 has not dashed to ST bus or ST bus was also not dashed to tempo No. 253. So, there was no collision between ST bus and tempo No. 253 but tempo No. 7186 giving dashed to ST bus on rear side of right side of bus then bus went to left side of road which are on correct side of road. Thereafter, tempo No. 7186 went to right side of road covered more than middle portion of road, at very moment tempo No. 253 coming from opposite side having straight road must have seen by driver of tempo No. 253 that from opposite side one tempo coming on middle of road, so he can control his speed or his vehicle for avoiding accident. The driver of Tempo No. 253 having opportunity to avoid accident but driver of tempo No. 7186 after dashed to ST bus have no opportunity to avoid further accident with Tempo No. 253 because at that occasion, tempo No. 7186 went on right side and his front portion was also on totally right side not straight on road but on kachcha road on right side. Meanwhile, from opposite side tempo No. 253 came with excessive speed not controllable by driver of tempo No. 253 dashed to middle portion of tempo No. 7186. The tempo No. 7186 was damaged caused by tempo No. 253 on driver side and empty side door was broken and banned one. One another factor that tempo No. 253 was stood to extent of 7'' distance towards eastern side from tempo No. 7186. Due to pushing driver side, door and mirror was broken, steering was rushed to out side and its front side show was banned. Radiator and other machinery was also broken and damage caused to tempo No. 253 Rs. 1,50,000/-. Therefore, tempo No. 7186 was not in condition to dash tempo No. 253 because tempo No. 7186 was went on totally right side cross more than middle portion of road. So position of tempo No. 7186 was not completely opposite side of tempo No. 253.

Therefore, according to my opinion, contention which are raised by learned advocate Ms. Jani in respect to finding given by claims Tribunal can not be accepted because evidence on record suggests otherwise which are rightly appreciated by claims Tribunal and after appreciating entire evidence on record. The claims Tribunal has rightly come to conclusion that there is no negligence of ST driver because at the time of dashing, bus was stood on stand not in moving condition.

Learned advocate Ms. Jani vehemently submitted that driver of ST bus is also equally responsible in accident, because all of sudden he stopped vehicle, i.e. how tempo No. 7186 dashed to ST bus and accident occurred.

Similar question decided by Division Bench of Kerala High Court in case of Prasanna v. Kerala State Road Transport Corporation, 2009 ACJ 2719 where driver of Corporation bus suddenly applied brake without any indication or signal and school bus following it hit rear end of Corporation bus and a passenger travelling in Corporation bus sustained injuries. Same contention was raised before Kerala High Court that accident occurred on account of Corporation bus driver suddenly stopping bus without giving any signal to vehicle following it. The application of brake suddenly is a reflex action and it is not premeditated thing done after giving indication or after giving signal to vehicle following it. The vehicle following another vehicle should take into account eventuality of vehicle going in front stopping abruptly due to a person or animal jumping in front of it or another vehicle interfering in its way or even a sudden obstacle appearing on road. In this case, it is held that driver of Corporation bus was not responsible for rash and negligent driving. The injured claimant can prefer claim against driver/owner and insurance company of school bus. The relevant observation made in para 2 is quoted as under:

On going through the award and the police charge against K.S.R.T.C. driver and after hearing counsel for the appellant, we are of the view that the police case instituted against the K.S.R.T.C. driver is absolutely untenable. Even on the facts admitted, it is clear that the accident occurred on account of the school bus following the K.S.R.T.C. bus hitting it from behind. Applying brakes suddenly by K.S.R.T.C. driver is the reason for the accident. Police seems to assume that a driver applying brakes suddenly should do so after giving indication or signal to the vehicle following it. We are unable to accept this proposition because application of brakes suddenly is a reflex action and is not a premeditated thing done after giving indication or after giving signal to the vehicle following. Moreover, a vehicle following another vehicle should take into account the eventuality of the vehicle going in its front stopping abruptly which may be for large number of reasons such as a person or animal jumping in front of it or another vehicle interfering in its way or even a sudden obstacle appearing in the road. In all such eventualities any moving vehicle will stop abruptly and the driver applies brake suddenly without any premeditation and it is more in the nature of a reflex action than a premeditated act to stop the vehicle. No such driver can be blamed for negligence or rash driving and the allegation of the police in this case against the K.S.R.T.C. driver is thoroughly absurd. In fact, every vehicle following another should keep a clearance so that in the event of the vehicle going in front stopping abruptly, the vehicle following should be in a position to stop without hitting the back of the vehicle stopping abruptly in front. In this view of the matter we do not accept the stand that the accident is on account of want of care by the driver of the school bus which hit K.S.R.T.C. bus from behind. Consequently, M.A.C.T. rightly rejected appellant''s claim for compensation against K.S.R.T.C. Even though counsel for the appellant pointed out the injuries and grievance of the appellant and sought a remand of the matter to the M.A.C.T., we are unable to accept this contention because an entirely new claim, if at all tenable, has to be raised by the appellant against the driver, owner and insurer of the school bus and cannot be done by impleading or amending the petition which was squarely directed against K.S.R.T.C. We, therefore, leave it open to the appellant to prefer a new claim petition against driver, owner and insurer of the school bus. Appeal is dismissed with the above observation. There will be direction to the M.A.C.T. to release the original documents to the appellant within 2 weeks from date of production of this judgment along with an undertaking by the appellant that this judgment is accepted and no further appeal will be filed against the same.

I have considered finding given by claims Tribunal, and this being a finding of fact properly appreciated and evidence is to be appreciated as whole not in a peace meal manner as submission made by learned advocate Ms. Jani. The finding of negligence given by claims Tribunal being finding of fact based on legal evidence can not consider to be baseless finding or perverse or arbitrary on the contrary, it is reasonable finding based on entire evidence which has been rightly appreciated by claims Tribunal. Therefore, no error is committed by claims Tribunal while deciding issue of finding of fact. Therefore, no interference is required by this Court.

The law on this subject has been considered by Apex Court in case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, The relevant discussion in respect to composite negligence while considering earlier decision of Apex Court in case of T.O. Anthony Vs. Karvarnan and Others, in para 11, 13 and 14 are quoted as under:

To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff''s fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. It the negligence on the plaintiff''s part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless.

In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss of injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

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 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 wrongdoers separately, nor is it necessary for the court to determine the extent of 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 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 stand reduced in proportion to his contributory negligence.

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 respondent, 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 composite negligence and contributory negligence. The High Court has failed to correct the said error.

The Apex Court in case of Jagdish Singh v. Madhuri Devi reported in 2008 (6) MLJ 842 has considered power of first appellate Court can re appreciate, review entire evidence, oral and documentary but trial Court''s conclusion not to be normally disturbed unless Trial Court''s appraisal of evidence erroneous, contrary to law and unreasonable. The relevant discussion made by Apex Court in para 24 to 32 are quoted as under:

It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re-hearing of the main matter and the appellate court can re-appraise, re- appreciate and review the entire evidence oral as well as documentary and can come to its own conclusion.

At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court''s conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.

Before more than a century, in Coghlan v. Cumberland (1898) 1 Ch 704, Lindley, M.R. pronounced the principle thus;

Even where the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.

see also observations of Lord Thankerton in Watt v. Thomas (1947) 1 All ER 582

In AIR 1949 32 (Privy Council) the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated;

But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.

This Court also, before more than half a century in Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, stated;

The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.

Referring to several cases on the point, the Court concluded;

The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.

After about a decade, in Radha Prasad Singh Vs. Gajadhar Singh and Others, this Court reiterated;

The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge''s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified.

In T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, this Court said;

The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants.

Yet in another decision in Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, this Court said;

At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies....

The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.

Considering entire evidence on record and discussion made by claims Tribunal, according to my opinion, both drivers of tempo driven their vehicles with uncontrollable speed, otherwise, such accident may not be occurred. Tempo No. 7186 going behind ST bus, then a reasonable care must have to be taken by driver of Tempo No. 7186 to keep a distance from ST bus as all of sudden, if, ST bus driver may apply brake and stop bus, then driver of tempo coming behind ST bus can control speed and avoid accident. The defence of ST bus driver or contention raised by learned advocate Ms. Megha Jani that ST bus all of sudden stopped and because of that, Tempo No. 7186 dashed and swerved to right side of ST bus. At that occasion, Tempo No. 253 coming from exact opposite side also having uncontrollable speed even after seeing Tempo No. 7186 from such a distance of more than 100 feet as per witness travelling in Tempo No. 253, even though, he was not in a position to control it because of excessive speed and dashed with Tempo No. 7186 and not dashed with ST bus. So, evidence on record suggests that both drivers of tempo respectively driving their vehicles with an excessive speed in rash and negligent manner and because of that only, accident occurred. The drivers of both tempos were not taken sufficient care and caution though opportunity was available to both drivers to avoid accident, but, they were not able to control their respective vehicle because of having uncontrollable speed of drivers to avoid accident, but they were not able to control their respective vehicle because of having uncontrollable speed of both tempos which resulted into accident. While deciding question of negligence, there can not be any straight jacket formula available or there is no such measurement which can be used for recording measurement of exact negligence. In such circumstance, it is very difficult for claimant to produce strict proof of exact negligence of driver. The claimants have to establish their case of composite negligence merely on touch stone of preponderance of probability. The standard of proof beyond reasonable doubt could not be applied in such an accident where both drivers of tempo equally responsible and it is a case of composite negligence and not a case of contributory negligence. See : 2009 AIR SCW 4298 Bimladevi.

It is also necessary to understand dash by both tempo; one is with ST bus and another is Tempo No. 253 with Tempo No. 7186, which amounts to being a composite negligence of both drivers. For that, exact evidence may not be available, but there are sufficient evidence on record to prove case of composite negligence of both drivers. The driver of ST bus who has filed complaint, FIR has given details that how accident is occurred between two tempos after dashed with ST bus by Tempo No. 7186. Therefore, that FIR has also disclosed case of composite negligence between both drivers of tempos.

The Apex Court in case of T.O. Anthony Vs. Karvarnan and Others, where it is made clear that what is meaning of contributory negligence and what is meaning of composite negligence. The relevant para 5 to 7, which is quoted as under:

The Tribunal assumed that the extent of negligence of the appellant and the first respondent is 50:50 because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss of injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

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 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 wrongdoers separately, nor is it necessary for the court to determine the extent of 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 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 stand reduced in proportion to his contributory negligence.

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 respondent, 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 composite negligence and contributory negligence. The High Court has failed to correct the said error.

In case of composite negligence, looking to evidence on record, finding of fact given by claims Tribunal that both drivers of tempo are equally responsible, that finding can not consider to be baseless or perverse or arbitrary. There was no negligence at all of ST bus driver, even though, he has stopped bus all of sudden, because it was a duty of driver who was coming behind to ST bus to keep a certain distance from going ahead vehicle which can be stopped at any occasion, for that, driver should have to control vehicle. So, it is a responsibility of driver of vehicle who was going behind vehicle to have controllable speed and to keep distance, so, in case, ahead vehicle, if all of sudden, applied brake and stopped the vehicle, then driver of behind vehicle can avoid accident. That care and caution has not been taken by driver of Tempo No. 7186. similarly, driver of Tempo No. 253 has also not taken sufficient care and caution after seeing opposite another Tempo No. 7186 because of uncontrollable speed, for which, he was not able to control it. Therefore, both drivers of tempo are equally responsible which can be found from record itself and established before claims Tribunal by oral and documentary evidence in absence of evidence of all drivers of ST bus and two tempos.

The conduct and attitude of insurance company is normally to challenge a reasoned and reasonable award before higher forum for denying liability of compensation knowing fully well that insurance company covers risk of third party. This has been criticized by Apex Court in case of Oriental Insurance Company Ltd. Vs. Ozma Shipping Company and Another, The relevant para 18 and 19 are relevant, therefore, same are quoted as under:

Before parting with this case we would like to observe that the insurance companies in genuine and bone fide claims of the insured should not adopt the attitude and bone fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies.

Incidentally by adopting an honest approach and attitude the insurance companies would be able to save enormous litigation cots and the interest liability. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed.

In view of above observation and considering finding given by claims Tribunal in respect to question of negligence and claims Tribunal has rightly appreciated oral as well as documentary evidence and accordingly finding given by claims Tribunal based on legal evidence and appreciation by claims Tribunal can not consider to be contrary to law and appraisal of evidence by claims Tribunal can not consider to be erroneous. On the contrary, claims Tribunal has given reasonable conclusion in case when accident occurred due to composite negligence of both vehicle tempos. In this case, question of contributory negligence does not arise as none of driver has filed claim petition against other side. Therefore, it is a clear case of composite negligence and considering evidence on record when passenger travelling in both tempo gave their evidence in support of their driver. None of independent persons were examined who can consider to be an eye witness of accident. Whatever evidence available before claims Tribunal, all evidences are of passengers travelling in both tempo means interested passengers and looking to damage caused to each tempo, which suggested and proved that both tempo where in excessive speed and driver of both tempo where not able to controlled their speed otherwise, accident can be avoided by either of driver of tempo if reasonable care and caution is taken with driving vehicle with moderate speed. Both driver of tempo were not able to control their vehicle even after showing opposite side other tempo No. 7186. the driver of tempo No. 253 having an opportunity to control it but due to excessive speed and rash and negligent driving dashed to tempo No. 7186. therefore, finding given by claims Tribunal can not consider to be erroneous, contrary to law and unreasonable.

According to my opinion, claims Tribunal has not committed any error which would require interference by this Court. The appellant insurance company has not challenged before this Court quantum of compensation awarded by claims Tribunal in respect to each claim petition. Therefore, this Court has not considered and examined quantum of compensation awarded by claims Tribunal in respect to each claim petition.

Hence, there is no substance in present appeal, each appeal is dismissed. Today, group of first appeals are dismissed, therefore, no order is required to be passed on civil application. Accordingly, all are disposed of.