MACA.No.2138 of 2009 (James Joseph v. Anupam Baburajan & Oriental Insurance Co. Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.2138 OF 2009** **AGAINST THE AWARD IN OPMV 487/2004 DATED 28-02-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT:** **JAMES JOSEPH, S/O.JOSEPH, THOTTUNGAL HOUSE, EAST COMBARA DESOM, PULLUR VILLAGE, IRINJALAKUDA P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS:** **1 ANUPAM BABURAJAN VELAPARAMBIL HOUSE, VALLIVATTOM P.O.,** **2 THE ORIENTAL INSURANCE CO.LTD. SOUTH JUNCTION, CHALAKUDY.** **R1 BY ADV. SRI.A.R.GEORGE SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2138 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- MACA No.2138 OF 2009 ------------------------------- ## **JUDGMENT** Dated this the 1[st] day of March 2021 The appellant is the claimant in O.P (MV) No.487/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The above claim petition was originally filed under Section 163(A) of the Motor Vehicle Act and subsequently it was amended and altered as an application under Section 166 of the Motor Vehicles Act. 2. The short facts necessary for deciding the case is like this:- The appellant was a pillion rider on the motor cycle bearing No.KL-8/L 8506, and the rider-cum-owner of the motor vehicle was the 1[st] respondent. At the place of the accident a lorry hit on the motor cycle while the appellant and the pillion rider were proceeding along the correct side of the road and the appellant sustained very serious injuries in the accident. There is composite negligence on the part of the rider of the MACA No.2138 OF 2009 3 motor cycle and the lorry driver. But, only the rider of the motor cycle is arrayed as a party in the claim petition. 3. To substantiate the case, the appellant himself was examined as PW1. Exts.A1 to A16 were marked on the side of the appellant. The respondents produced Exts.B1 to B4 before the tribunal. 4. After going through the pleadings and documents, the Tribunal dismissed the claim petition. The tribunal found that, when the appellant claimed composite negligence on the part of the driver of the motor cycle and the driver of the lorry only the rider of the motor cycle is arrayed as a party. Aggrieved by the same, this appeal is filed by the appellant. 5. Heard the counsel for the appellant and the counsel for the 2[nd] respondent. 6. The counsel for the appellant submitted that when there is composite negligence, the appellant can file a claim petition against either of the wrongdoer. He relied the judgments of the apex court in **Anthony v. Karvarnan [2008(3) KLT 431 (SC)] and Pawan** MACA No.2138 OF 2009 4 **Kumar v Harkishan Dass Mohanlal [2014(1)KLT 571]** . The counsel also relied the judgment of the Apex court in **Kamlesh and others v Attar Singh and others [2016 (1)ACJ 1]** . 7. The counsel for the 2[nd] respondent submitted that there is absolutely no evidence adduced by the appellant to substantiate his case. In such circumstances, the tribunal perfectly justified in dismissing the claim petition. 8. I perused the evidence and documents available in this case. In the light of the judgment relied by the appellant, I think there is some force in the arguments of the appellant. In **Anthony's** case (supra) the apex court observed like this:- “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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong doers. In such a case, each wrong doer, 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 wrong doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong doer MACA No.2138 OF 2009 5 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 of 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 stands 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.” [Emphasis supplied] ## 9. In **Pawan Kumar's** case the apex court after considering the dictum in **Anthony's** case, observed like this:- “7. Where the plaintiff / claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. In such MACA No.2138 OF 2009 6 a situation the plaintiff can only be held entitled to such part of damages / compensation that is not attributable to his own negligence. The above principle has been explained in T. O. Anthony (supra) followed in K. Hemlatha and Others (supra). Paras 6 and 7 of T. O. Anthony (supra) which are relevant may be extracted hereinbelow: “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 that the 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 MACA No.2138 OF 2009 7 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.” ## 10. In **Kamlesh's** case the apex court observed ## like this:- “7. Aggrieved thereby Attar Singh preferred appeal before the High Court. The High Court on the ground that in the claim petition the negligence of Attar Singh has not been pleaded and the claimants have relied upon the evidence of Ram Parshad, PW 2 and Devender PW 3 to prove the negligence of the driver of the Maruti car; whereas Rajinder driver of Maruti car had lodged the first information report. As the claimants have not set up the case of negligence against Attar Singh, the High Court has allowed the appeal filed by Attar Singh, driver of the tempo and has dismissed the claim petition. Aggrieved thereby the appeal has been preferred by the claimants. 8. We have heard the learned Counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW 2 and Devender PW. 3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is,the driver of Maruti car and driver of tempo. Though Police has registered a case against driver of tempo Attar Singh, and has filed the charge-sheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the Maruti car, a case was registered against him. Be that as it may, it appears that both the drivers have tried to save their liability. In such circumstances, the version of eyewitnesses, PW. 2 and PW. 3, assumes significance. The fact remains that car had dashed Tempo on the middle portion near footstep. Thus the method and manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and MACA No.2138 OF 2009 8 manner in which the accident has taken place. Both the aforesaid witnesses have stated that Maruti Car was in excessive speed. However, it appears that driver of Tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint 'tortfeasors', thus, liable to make payment of compensation. 9. The law in the case of an accident arising out of composite negligence has been considered by a 3 Judges' bench of this Court in Khenyei v. New India Assurance Co. Ltd. and Ors. (MANU/SC/0582/2015 : AIR 2015 SC 2261) wherein following propositions have been laid down: (i) In the case of composite negligence, Plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the Plaintiff/Claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tortfeasors 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 tortfeasors 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 tortfeasor can recover the amount from the other in the execution proceedings. (iv) 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 tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after MACA No.2138 OF 2009 9 passing of the decree or award.” 11. In the light of the above principle laid down by the Supreme Court, I cannot agree with the finding of the tribunal that since the driver of the lorry is not impleaded as respondent in the claim petition it is to be dismissed. But, there is some force in the argument of the counsel for the respondents also because there is absolutely no evidence to substantiate the case of the appellant regarding the composites negligence. Then, the counsel for the appellant submitted that he may be given an opportunity to adduce further evidence. 12. I think this matter can be remanded to the tribunal for giving an opportunity to both sides to adduce further evidence if necessary and thereafter, the tribunal can decide the matter afresh. I make it clear that no denovo trial is necessary. The parties can be given an opportunity to adduce further evidence. Therefore, this appeal is allowed:- 1. The impugned award dated 28.2.2009 in OP(MV) No.487/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda is set MACA No.2138 OF 2009 10 aside. - 2.The Motor Accidents Claims Tribunal, Irinjalakuda will restore OP(MV) No.487/2004 and allow the parties to adduce further evidence if any to prove the composite negligence pleaded by the claimants. - 3.Thereafter the tribunal will take an appropriate decision in accordance with law, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. - 4.The parties will appear before the tribunal on 31.3.2021. The registry will return the LCR forthwith. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ska