United India Fire and General Insurance Co. Ltd. vs U.E. Prasad and Others

G.N. Sabhahit, J.—This appeal by the insurer of the auto is directed against the judgment and award dated June 1, 1978, made by the Claims Tribunal, Bangalore City, in M.C. No. 67 of 1975 on its file awarding compensation of Rs. 8,684 from respondents Nos. 1 and 3 to 6 in the petition along with interest and costs.

The learned counsel appearing for the appellant submitted that since the Tribunal held that the drivers of both the auto and car were responsible for causing the accident, the Tribunal ought to have apportioned the liability between the two vehicles. He contended that the insurance company which has insured the auto could not be made liable to pay the entire compensation jointly and severally along with the other respondents. This submission was repelled by the learned counsel appearing for the claimant. He submitted that the accident was the result of composite negligence and not contributory negligence. The person who was injured was a passenger in the auto. The evidence of the petitioner shows that both the vehicles were being driven at a very high speed and that is the cause of the accident. That being so, it is true that the accident was the result of composite negligence of the driver of both the auto and the car. In the case of composite negligence, the claimant can proceed against any joint tortfeasor or against all of them as they are jointly and severally liable. The Tribunal has given joint and several liability which, in our opinion, is just and proper.

The auto could be described as a motor cab. A "motor cab" is defined u/s 2(15) of the Motor Vehicles Act. It states :

"''Motor cab'' means any motor vehicle constructed, adapted or used to carry not more than 6 passengers excluding the driver, for hire or reward."

As such, the autorickshaw falls within the category of motor cab (vide Sunmitra Auto Rickshaw Sahakari Sangh Ltd. and Another Vs. Director of Transport and Others, , and, therefore, the liability of the insurance company in the case of a passenger in the motor cab would extend to Rs. 10,000. That being so, the liability awarded in this case is within the liability of the insurance company.

In the result, there is no merit in this appeal and the appeal is dismissed. The insurer, however, is at liberty to take action for recovering the contribution from the other respondents who are made liable to pay the compensation jointly and severally.