High Court of KeralaSingle Judge2017-10-24Appeals dismissed; lower court awards upheld; i...

Chakiath Agencies Pvt. Ltd. v. Divya and New India Assurance Co. Ltd. (MACA No. 2475 of 2015, with connected MACA Nos. 2939, 3192 & 2974 of 2015)

Case / Petition Number:MACA No. 2475 of 2015 (and connected MACA Nos. 2939, 3192 & 2974 of 2015)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2017-10-24
Court Decision / Holding: Appeals dismissed; the awards passed by the Motor Accidents Claims Tribunal are upheld; the insurer is directed to satisfy the awards and recover the amount from the driver/owner of the fork lift as applicable; the claimants retain the right to proceed against any or all tort feasors, but the appellate court does not disturb the principle of joint liability in composite negligence and confirms the lower awards.
Final Disposition: Appeals dismissed; lower court awards upheld; insurer to satisfy awards and recover from insured as appropriate.

Parties to the Case

Appellants / Petitioners

Chakiath Agencies Pvt. Ltd.

Respondents

Divya
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. George Thomas (Mevada) (Sr.)
• Sri. Manu Kuruvilla
• Sri. Amal George

Counsels for Respondents

• Sri.K.C.Santhoshkumar
• Sri.A.A.Ziyad Rahman

Case Synopsis & Summary

These MACA Nos. 2475, 2939, 3192 and 2974 of 2015 arise from four OP(MV) petitions under the Motor Accidents Claims Tribunal, Ernakulam, challenging awards for injuries sustained in a 14.10.2011 accident involving an auto rickshaw, a fork lift and a container lorry. The Tribunal awarded Rs.72,600, Rs.44,000, Rs.57,000 and Rs.60,500 with 8% interest and costs, directing the insurer to satisfy the awards and recover amounts from the fork lift driver and owner. The owner-appellant contends that the finding of negligence against the fork lift/other vehicles is unsustainable and that the auto rickshaw driver was not negligent; the insurer contends composite negligence among tort feasors and that the claimants could sue any or all responsible parties. The appellant relies on established precedents, including M.S. Grewal v. Deep Chand Sood, to define negligence, and APSRTC v. Hamalata and Pawan Kumar v. Harikishan Dass Mohan Lal to support joint liability in composite negligence. The High Court, after considering the record, dismisses the appeals, upholding the lower court’s awards and directing the insurer to satisfy the awards, with recovery to be effected from the insured where appropriate.

Legal Doctrines & Maxims

Composite negligence
Joint and several liability
Breach of duty (negligence)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the finding of negligence against the fork lift driver and the other vehicles is unsustainable; there was no established negligent act by the fork lift or auto rickshaw drivers, and the claim for composite negligence should not fasten liability on the appellant without proper evidence. They rely on principles of breach of duty and argue that evidence did not prove the fork lift driver’s negligence; they urge that liability under policy conditions is misapplied and that the trial court erred in merging liability among multiple tortfeasors.

Contentions of Respondents

The respondents defending the awards argued there is composite negligence among the auto rickshaw driver, fork lift driver and other vehicles; the insurer contends joint responsibility of tort feasors for the injuries and that the claimant may sue any or all responsible parties; evidence of negligence was presented through documentary proofs; the insurer contends the appeal should not disturb the Tribunal’s findings and the award should stand.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
M.S. Grewal & Another v. Deep Chand Sood & Others	2001 ACJ 1719	Positive	Cited to explain the principle of negligence and breach of duty in tort law.
A.P.S.R.T.C. And Anr. Vs. K.Hamalata and Ors	2008 ACJ 2170	Positive	Cited for the doctrine of composite negligence and joint liability in tortfeasor cases.
Pawan Kumar and Anr. Etc. Vs. Harikishan Dass Mohan Lal and Ors.	2014 ACJ 704	Positive	Cited to reinforce joint liability in composite negligence scenarios.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **MACA.NO. 2475 OF 2015 () -------------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.1780/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 03-03-2015** ## **---------------------** **APPELLANT(S)/1ST RESPONDENT:** **---------------------------** **CHAKIATH AGENCIES PVT. LTD., W.ISLAND, KOCHI 3.** **BY ADVS.SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.MANU KURUVILLA SRI.AMAL GEORGE** ## **RESPONDENT(S)/PETITIONER/RESPONDENTS 2 & 3:** **-------------------------------------------** ## **1. DIVYA, 21 YEARS,** - **D/O.T.G.RAVI, H.NO.12/1511, NEAR PANAYAPPILLY GOVT. SCHOOL, KOCHI 2.** ## **2. ARAVINDAKSHAN NAIR** **S/O.KRISHNAPANICKER, SIVAKRIPA VEETTIL, KOOVAPPADAM, KOCHI OR KARTHIKAMANDIRAM HOUSE, KUMBALAM P.O.-682 506. (DELETED) ** ORDER DATED 22.02.2017 RECALLED.** **** R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22.02.2017 IN I.A. NO.544 OF 2017.** **** ORDER DATED 22.02.2017 IN I.A. NO.544 OF 2017 DELETING THE SECOND RESPONDENT IS RECALLED AS PER ORDER DATED 06.03.2017 IN MACA NO.2475 OF 2015.** **3. THE NEW INDIA ASSURANCE CO. LTD, ERNAKULAM PIN-682 011.** **R3 BY ADV. SRI.K.C.SANTHOSHKUMAR BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2017 ALONG WITH M.A.C.A. NO.2939 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015** ## **---------------------------------Dated this the 24[th] day of October, 2017** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.1780 of 2012, 2010 of 2011, 2147 of 2011 and 2130 of 2011 of the Motor Accidents Claims Tribunal, Ernakulam by the owner of the vehicle. The claimants sustained injuries in a motor accident on 14.10.2011 at 10.30 a.m., while they were travelling in an auto rickshaw KL-7/J-9921 along Kundannoor-Island road. The learned tribunal awarded an amount of Rs.72,600/(Rupees seventy two thousand six hundred only) in O.P. (M.V.) No.2010 of 2011, Rs.44,000/- (Rupees forty four thousand only) in O.P.(M.V.) No.2130 of 2011, Rs.57,000/(Rupees fifty seven thousand only) in O.P.(M.V.) No.2147 of 2011 and Rs.60,500/- (Rupees sixty thousand five hundred only) in O.P.(M.V.) No.1780 of 2012 with 8% interest per annum from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award and recover the amount M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 2 from the driver and owner of the Fort Lift. Being aggrieved by that, the owner of the vehicle preferred these appeals. 2. The claimants case in the lower court was that while they were travelling in an auto rickshaw bearing registration No.KL-7/J9921 along KundannoorIsland road and when it reached at ATS junction, another vehicle, HGV Fork Lift bearing registration No.KL-43A1722, driven by the 2[nd] respondent in a rash and negligent manner hit against the auto rickshaw. As a result, the driver of the auto rickshaw was thrown away and the vehicle hit against a lorry bearing registration No.Kl-7/M-9239. Due to that impact, the petitioners in O.P.(M.V.) Nos.1780 of 2012, 2010 of 2011, 2147 of 2011 and 2130 of 2011 sustained serious injuries. Immediately they were removed to hospital. The driver and owner of the Fork Lift contended that the fork lift was proceeding with great care and caution, there was no negligence from their side and the accident occurred due to the M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 3 negligence from the side of the driver of the auto rickshaw. The insurer admitted the insurance but contended that the driver, owner and insurer of the auto rickshaw and the lorry are necessary parties. When there is composite negligence from the part of the auto rickshaw driver, the petitioners have to implead the tort feasors of the other vehicle also. It is also contended that the driver of the fork lift was not holding a valid driving licence to drive the fork lift at the time of accident and there was violation of the policy conditions. The claimants did not adduce any oral evidence but their documents were marked as Exts.A1 to A17. Respondents evidence was marked as Ext.B1. 3. The learned counsel appearing for the appellant contended that the auto rickshaw was proceeding from the north south direction and the fork lift was proceeding from east to west and it was the driver of the auto rickshaw to ply through the western side. Without noticing the fork lift, the driver of the auto M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 4 rickshaw proceeded through the road and hit against the fork lift. Thereafter the vehicle proceeded ahead and hit on the right side of the container lorry. Hence the finding of the court below is unsustainable in law. 4. Learned counsel appearing for the insurer contended that even though composite negligence was attributed against the other vehicles, no evidence has been adduced in the court below to substantiate that contention. 5. Negligence is a breach of duty or lack of proper care in doing something. It is a want of attention for doing something which a prudent and reasonable man would not do. When there is failure in the duty to take care, it is presumed that there is negligence from the part of that person. In an action based on tort, the claimant has to prove that the driver of the vehicle was negligent and as a result of his negligence, he sustained injuries in a motor accident. Therefore, it is the duty of the claimant to adduce evidence for establishing the negligence on the M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 5 part of the tort feasor. In this case, both the passengers and the driver of the auto rickshaw preferred claim petitions alleging negligence on the part of the driver of the fork lift. Apex Court in **M.S. Grewal & Another** v. **Deep Chand Sood & Others ( 2001 ACJ 1719)** held the principle of breach of duty and explained what is negligence. 6. The injureds case in the lower court was that on 14.10.2011 at 10.30 a.m., while they were proceeding in an auto rickshaw bearing registration No.KL-7/J-9921 along Kundannoor-Island road, a fork lift driven in a rash and negligent manner at a high speed hit against the auto rickshaw, as a result, the driver lost his control, the vehicle rammed against a container lorry and they sustained serious injuries. Kochi City Traffic Police registered Crime No.12446 of 2011 against the driver of the fork lift. Ext.A1 is the FIR, Ext.A2 is the scene mahazar, Ext.A3 is the charge sheet and Exts.A4 and A5 are the AMVI reports. In the Final Report, the driver of M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 6 the fork lift was charge sheeted by the City Traffic Police. Exts.A6 and A9 are the wound certificates. Exts.A7, A10, A13 and A16 are the discharge summaries. Exts.A8, A11, A14 and A17 are the medical Bills. Even though the appellant contended that the accident was due to the negligence of the driver of the auto rickshaw, no evidence has been adduced in the trial court to substantiate that contention. 7. The appellant raised composite negligence against the driver of the auto rickshaw and the lorry, but no negligent aspect of the driver of the lorry was pleaded in his written objection. When a person sustained injuries as a result of the negligence of two or more tort feasors, each wrong doer is jointly and severally liable for the entire damages, in a composite negligence case. In such a situation, the injured person has choice of proceedings against all of them or any of them for getting compensation. In such a situation, the liability of each wrong doer need not be established separately. This M.A.C.A. Nos.2475, 2939, 3192 & 2974 of 2015 7 principle was laid down by the apex court in **A.P.S.R.T.C. And Anr.** Vs. **K.Hamalata and Ors [2008 ACJ 2170]** . The liability of the joint tort feasors in a composite negligence case was also settled by another decision in **Pawan Kumar and Anr. Etc.** Vs. **Harikishan Dass Mohan Lal and Ors. [2014 ACJ 704]** . Even though the drivers of the other vehicles were not impleaded, the claimants can opt any of the tort feasors or all of them. If that be the position, the contention advanced by the appellant is unsustainable in law. When there is violation of the policy condition, it is the responsibility of the insurer to satisfy the award and reimburse the amount from the insured. If that be the position, there is no merit in these appeals and these appeals are dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS