Radha Tin Containers vs Anandram and Others

N.K. Mody, J.—Being aggrieved be inadequacy of the amount awarded vide award dated 26th April, 1999 passed by M.A.C.T., West Nimar, Mandleshwar in claim case No. 8/97 whereby the claim petition filed by respondent No. 1 has been allowed holding that there was contributory negligence by the two vehicles, hence, the owner driver and Insurance Company of one of the vehicles shall be liable for 50% of the amount awarded and owner and driver of another vehicle shall be liable for rest of the amount of award, the present appeal has been filed.

Short facts of the case are that an accident took place on 20th January, 1997 between the truck bearing No. M.P.-09-K.A.-5260 and the truck bearing No. M.P.-10A-0553.

The truck bearing No. M.P.-09-K.A.-5260 was driven by respondent No. 3 owned by respondent No. 2 and insured with respondent No. 4. The truck bearing No M.P.-10A-0553 was owned by the appellant, driven by respondent No. 5 and insured with respondent No. 6.

Claimant-respondent No. 1 was driver in truck No. M.P.-10A-0553 at the relevant time. Learned Tribunal found that since the offending truck in which the respondent No. 1 was travelling and which was owned by appellant, was a goods vehicle, therefore, respondent No. 6, Insurance Company was not liable for payment of compensation and since the negligence was on the part of both the drivers, therefore, liability was proportioned by 50:50%.

Mr. Manish Jain, learned Counsel for appellant submits that learned Tribunal has committed error in fixing the liability of 50:50% of drivers of both the vehicles. It is also submitted that since the respondent No. 1 was third party, therefore, even if liability was fixed then too, the respondent No. 6 could not be exonerated.

Reliance was placed on a Full Bench decision in the matter of Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, , wherein it was held that in the cases of joint tortfeasors, it is difficult to determine the extent of liability of each tortfeasor and it will not be possible to apportion the ratio of negligence of the joint tortfeasors. In the case of composite negligence or in the cases of joint tortfeasors arising out of the use of motor vehicle, award can be passed against both or any one of them for the entire amount because the injured is not in a position to quantify or qualify the apportionment of each vehicle. Since he has suffered injury on account of use of motor vehicles, both the motor vehicles will be jointly and severally liable to pay the compensation. It is the choice of the claimant to sue both or may claim compensation from one of the joint tortfeasors as their liability is joint and several. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two, as it is difficult to determine the apportionment in the absence of the drivers of the vehicles appearing in the witness-box. Therefore, there cannot be any apportionment of the claim between the joint tortfeasors.

Mr. Anil Goyal, Advocate for respondent Nos. 4 to 6 submits that since respondent No. 1 was driver in a goods vehicle, therefore, respondent No. 6 has been rightly exonerated.

In view of the law laid down by the Full Bench of this Court, the appeal deserves to be allowed. Since learned Tribunal has found that driver of both the vehicles were liable for the accident, therefore, the amount awarded can be recovered by any of the respondents.

With the aforesaid observations, the appeal stands disposed of.