Misc Appeal C No 24 of 2011

Smt Paras Bai

...Petitioners

Versus

1 Amit Kumar Agrawal

2 The New India Insurance Co Ltd

...Respondents

! Shri Samir Singh counsel for the appellant ^ Shri Sudhir Agrawal and Shri P Dutta counsel for respondent No 2 CORAM: HONBLE SHRI RAJEEV GUPTA CJ & HONBLE SHRI RANGNATH CHANDRAKAR J Dated: 15/12/2011

: Judgement

ORDER

Miscellaneous Appeal under Section 173 of Motor Vehicles Act 15th December 2011

The following order of the Court was passed by Rajeev Gupta, C.J.

This is claimants' appeal for enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 30.11.2010, passed in Claim Case No.19/2010. 2) As against the compensation of Rs.19,70,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by her in the motor accident on 10.07.2008, the Tribunal awarded a total sum of Rs.15,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Paras Bai sustained multiple serious injuries including fractures in the motor accident on 10.07.2008; the accident occurred due to negligence of the drivers of both the vehicles i.e. Maxi-Cab Jeep bearing registration No.CG-10-ZA/0464 in which the claimant was travelling and the other vehicle unknown Bus; the negligence of the driver of Maxi-Cab Jeep and the unknown Bus was to the extent of 50% each; as the above Maxi- Cab Jeep on the date of the accident was insured with the New India Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimant. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment, assessed lump sum compensation at Rs.30,000/-. As the Tribunal held it to be a case of contributory negligence, the owner and the insurer of Maxi-Cab Jeep were directed to pay 50% of Rs.30,000/- i.e. Rs.15,000/- as compensation to the claimant. The Tribunal further directed payment of interest on the above amount of compensation of Rs.15,000/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Samir Singh, learned counsel for the appellant placing reliance on the dictum of the Apex Court in the case of TO Anthony Vs Karvarnan and others reported in (2008) 3 SCC 748 submitted that the Tribunal has erred in holding it to be a case of contributory negligence, as admittedly the claimant was not driving any of the two vehicles involved in the accident and as such, it would be a case of composite negligence, where the claimant has the choice to claim the entire amount of compensation from any of the two tort feasors.

6) Shri Sudhir Agrawal and Shri P Dutta, learned counsel for respondent No.2, the New India Insurance Company Limited, the insurer of the Maxi-Cab Jeep in which the claimant was traveling at the time of the accident, in view of the above dictum of the Apex Court in the case of TO Anthony Vs Karvarnan (supra) could not dispute the above legal position that present would be a case of composite negligence and not of contributory negligence as held by the Tribunal.

7) At the time of the accident, claimant Paras Bai was traveling in Maxi-Cab Jeep bearing registration No. CG- 10/ZA/0464. Respondent No.1 Amit Kumar Agrawal is the owner of this Maxi-Cab Jeep and respondent No.2 the New India Insurance Company Limited is its insurer. It has come in the evidence that the driver of the Jeep died in the accident.

8) The Apex Court while outlining the distinction between the cases of `Composite Negligence' and `Contributory Negligence' in the case of TO Anthony Vs Karvarnan (supra) observed in paras 6 and 7 :

"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 of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer 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 partly as a result of his own negligence, then the negligence on the part 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.

7. 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." 9) Now reverting to the present case, admittedly, claimant Paras Bai was not driving any of the two vehicles i.e.Maxi- Cab Jeep and unknown Bus at the time of the accident. She was only a passenger in Maxi-Cab Jeep. The Tribunal, therefore, has apparently fallen into error in holding it to be a case of contributory negligence and in deducting 50% of the compensation assessed on that basis. The above finding of the Tribunal, therefore, cannot legally be sustained and it is liable to be set aside.

10) As in the case of composite negligence, the choice is with the claimant to claim the entire amount of compensation from any of the two tort feasors and in the present case the claimant opted to claim the entire compensation from the owner and insurer of Maxi-Cab Jeep, the owner and insurer of Maxi-Cab Jeep are liable to pay the entire amount of compensation assessed by the Tribunal. 11) The Tribunal assessed the total compensation payable to the claimant at Rs.30,000/-. As the claimant has already received Rs.15,000/- as compensation under the impugned award, the liability of the owner and insurer of Maxi-Cab Jeep, now is to pay the balance amount of Rs.15,000/- to the claimant.

12) The claimant is further awarded Rs.1,000/- towards quantified amount of interest on the above Rs.15,000/-. 13) For the foregoing reasons, the appeal filed by the appellant/ claimant for enhancement of the compensation is allowed in part. By setting aside the finding of `Contributory Negligence' recorded by the Tribunal, the compensation of Rs.15,000/- awarded by the Tribunal is enhanced to Rs.30,000/- with further quantified amount of interest of Rs.1,000/- on the enhanced amount of compensation of Rs.15,000/-.

14) Respondent No.2 the New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.16,000/- (Rupees sixteen thousand only) (Rs.15,000/- towards enhanced amount of compensation + Rs.1,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.15,000/-) before the claims Tribunal. 15) No order as to costs.