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Judgment
These are three appeals arising out of a same accident. The appellant in three appeals are the same Insurance Company. The three claim applications decided and the award of which is under challenge are Claim Case No.1048 of 2019, 1049 of 2019 and 1047 of 2019 respectively. All the three claim applications were decided on the same day vide impugned award dated 25.07.2022 by the IIIrd Additional Motor Accident Claims Tribunal, Bilaspur. The Tribunal while deciding the claim applications has awarded compensation of Rs.13,00,360/-, Rs.1,28,470/- and Rs.13,00,360/- respectively in three cases with interest @ 9 per annum from the date of application. It is these three awards which are under challenge in these three appeals.
MAC Nos. 1116 of 2022 and 1119 of 2022 are arising out of a death case where the deceased was Prem Nishad and Gowardhan Patel respectively. The accident arose as a result of clash of two motorcycles on 05.03.2019. One of the motorcycle being driven by the deceased Gowardhan Patel i.e. deceased in MAC No.1119 of 2022 bearing registration No.CG-12-K-2610. The said motorcycle was insured with the ICICI Lombard General Insurance Co. Ltd. The said vehicle was owned by Tikeshwar Kumar Patel. Anil Kumar Patel, an injured, the claimant in MAC No.1118 of 2022 was the pillion rider along with the two deceased Gowardhan Patel and Prem Nishad. So far as the other motorcycle is concerned, it was CG-22-M-6571, owned and driven by Chandraprakash Sahu along with pillion rider Sudhir Kumar. Sudhir Kumar died as a result of the said accident and the legal heirs of Sudhir Kumar had filed a claim application before the Claims Tribunal Baloda Bazar Bhatapara vide claim case No. 135 of 2019 and where there was an award passed on 27.10.2021 and where assessing composite negligence upon the driver of the two motorcycles the liability was distributed between the two insurance companies which had insured the two motorcycles. The said vehicle which was being driven by Chandraprakash Sahu with a pillion rider Sudhir Kumar was insured with the present appellant Tata AIG General Insurance Co. Ltd.
The admitted factual position is that the driver of motorcycle insured by the appellant herein CG22-M-6571 namely Chandraprakash Sahu was not having a valid driving license on the date of accident and it was in this context that the Tribunal while assessing the compensation has applied the principle of Pay and Recovery. It is this three awards which are under challenge in the three appeals.
The contention of the learned counsel for the appellant is that the Tribunal has erred in not accepting the contention of the insurance company of there being a contributory negligence on the part of the drivers of the two motorcycles particularly when the Tribunal at Baloda Bazar Bhatapara has reached to the said conclusion. The further contention of the appellant is that the finding of the Tribunal that they are not a necessary party also is incorrect and the impugned award deserves to be interfered with on this count.
Perusal of pleadings and the impugned judgment would go to show that there was no application as such moved by the appellant for impleading the owner, driver and the insurance company of the motorcycle driven by Gowardhan Patel i.e. CG-22-K-2610 as a necessary party. What is also evident from the pleadings is that the insurance company in respect of its contention have examined only the Investigating Police Officer of the criminal case from the FIR that was registered against the accident that occurred on 05.03.2019.
As a result of the accident, two FIRs were registered at Police Station Kasdol. One as Crime No.150/2019 and the other as Crime case No.151/2019. The two crimes were registered against the respective drivers of the two motorcycles involved in the accident. Apart from this fact, the Investigating Officer has not been able to adduce any evidence to substantiate the contention of contributory negligence before the Tribunal. Apart from the evidence of the Investigating Officer (Police Officer) from the criminal case, the insurance company has not led evidence of any other witnesses in support of their contention or submission.
Now as regards the composite and contributory negligence part is concerned, it would be relevant at this juncture to take note of the decision of the Supreme Court in case of Khenyei Vs. New India Assurance Company Limited and Others, 2015(9)SCC 273 and for ready reference the guidelines and parameters laid down by the Supreme Court from the said judgment is that which is mentioned in paragraphs 15 and 22 which reads as under :
“15.There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
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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 responsibility, 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.”
What emerges from the aforesaid discussion is as follows :
(22.1) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(22.2) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(22.3) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(22.4) It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”
In view of the aforesaid specific decisions laid down by the Supreme Court the first thing what is reflected that in case of a composite negligence apportionment of compensation between two tortfeasors an option is left for the claimant to recover the compensation from any of the tortfeasors. Further, what is also reflected is that merely because one of the tortfeasors have not been made a party that by itself would not be a ground for rejecting the claim of the claimants or for apportionment of the compensation arrived at.
From the principles laid down in the paragraph 22.4, it is left open for one of the impleaded tortfeasor to initiate appropriate proceedings against the left out tortfeasor after the passing of the award. In view of the aforesaid judgment of the Supreme Court, the said option of the appellant insurance company is still open to initiate against the left out tortfeasors.
Another factor what is required to been seen is that except for the award passed by the Tribunal at Baloda Bazar Bhatapara in the case of one of the deceased from the said accident, there does not seem to be any cogent substantial material as an evidence before the Tribunal to reach to the conclusion that there was an element of negligence on the part of Chandraprakash Sahu, the driver of the motorcycle No.CG-22M-6571. Mere clash of two vehicles coming from the opposite direction or a head on collision by itself cannot be presumed to have occurred because of a contributory negligence as there could be an accident which is an head on collision as a result of the vehicle coming from the opposite direction crossing the sides and dashing the vehicle from the other side. It is under such circumstances the the evidence is required to establish the negligence part and that negligence part has to be established against both the drivers so as to attract the element of contributory negligence.
This view of this court is fortified from the judgment of the Supreme Court in case of Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, 2013(9)SCC 166 which has also been relied upon by the Division Bench of this Court in Dr. A.P. Sawant Vs. Sunil Kumar Choudhary & Others (MAC No.127 of 2015, decided on 13.01.2021).
In view of the same, the grounds raised by the appellant does not seem to be strong enough grounds calling for an interference with the impugned award.
As regards the principle of Pay and Recovery is concerned, the said also is by now a well settled proposition of law where it has been categorically held that mere non availability of a driving license by itself would not exonerate the liability of the insurance company in its totality as undoubtedly the offending vehicle was duly insured with the appellant. As regards the owner and driver of the motorcycle not having a valid license, the principle of pay and recovery is what could be applied and which has been rightly applied by the Tribunal and the said award on that ground therefore does not warrant interference.
For all the aforesaid reasons, the three appeals being devoid of merit deserves to be and is accordingly rejected. However, the right which flows on the appellant insurance company from the judgment of Supreme Court in Khenyei (Supra) is left open to be considered on its own merits in accordance with law if at all if the appellant avails the same.