National Insurance Company Ltd. v. Sivadasan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 MACA NO. 629 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 410/2004 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR, THRISSUR** ## **APPELLANT/S:** NATIONAL INSURANCE COMPANY LIMITED THRISSUR NOW REPRESENTED BY ITS MANAGER,, KOCHI REGIONAL OFFICE, OMANA BUILDING,, M.G.ROAD, KOCHI-35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 SIVADASAN S/O DASAPPAN CHENAMPARAMBIL HOUSE, MUNDOOR P.O.,, THRISSUR DISTRICT-680 541. 2 BABU S/O.THANKAPPAN ANCHUMALAKKAL HOUSE, CHAKKAMUKKU,, PUNKUNNAM P.O., THRISSUR DISTRICT-680002. 3 *FRANCIS SO.JOHNSON ELUVATHINGAL HOUSE NEAR KOTTAPPURAM SIVA TEMPLE, PUNKUNNAM P.O.,, THRISSUR DISTRICT-680002. [*DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 09.11.2021 IN I.A. NO. 1/2021] MACA NO. 629 OF 2011 2 BY ADVS. SMT.R.RAJITHA SRI.P.SANTHOSH PODUVAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 629 OF 2011 3 ## **JUDGMENT** The appellant/insurer was the 2[nd] respondent in OP(M.V) No.410/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the claimant and the 3[rd] respondent before the Tribunal. Even though the appellant had impleaded the 4[th] respondent before the Tribunal as a party in the appeal, the 4[th] respondent was deleted from the party array. Similarly, the appellant has not impleaded the 1[st] respondent as a party in the appeal. Therefore, for the sake of convenience, the parties are referred to as per the status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of injuries that he sustained in an accident on 04.10.2003. It was his case that, while he was travelling in an autorickshaw bearing MACA NO. 629 OF 2011 4 registration No. KL-8/Q-5452 (auto-rickshaw) from Thrissur to Shornur, when the auto-rickshaw reached Thiroor temple, a car bearing registration No. KL8/N 6345 (car), owned and driven by the 1[st] respondent before the Tribunal, in a negligent manner, came from the opposite direction and hit the auto-rickshaw. The petitioner had sustained serious injuries and was treated at the Aswani Hospital, Thrissur. The petitioner was a catering worker by profession and earning a monthly income of Rs. 4,500/-. The 2[nd] respondent was the insurer of the car. The respondent Nos. 3 and 4 were the owner and driver of the auto-rickshaw. Hence, the petitioner claimed compensation from the respondents. 3. The driver and other passengers in the autorickshaw also filed OP (M.V) Nos.3691/2004, 3682/2004, 3683/2004 and 3685/2004 before the same Tribunal, seeking compensation from the respondents in the claim petitions. MACA NO. 629 OF 2011 5 4. The first respondent had filed a written statement in the captioned case stating that the car was covered by a valid insurance policy. It was also contended that the accident occurred due to the negligence of the 1[st] and 4[th] respondents. It was stated that the auto-rickshaw belonged to the 3[rd] respondent, but the vehicle had no valid insurance coverage. Hence, the 1[st] respondent prayed that the claim petition be dismissed. 5. The 2[nd] respondent (appellant/insurer) filed written statements in all the claim petitions, admitting that the car had a valid insurance coverage. The 2[nd] respondent reiterated the contentions of the 1[st] respondent, that the accident occurred due to the negligence of the driver of the auto-rickshaw and that the auto-rickshaw had no valid insurance coverage. It was further contended that the auto-rickshaw was overloaded with seven passengers, which was the cause of the accident. Therefore, it was the owner of the auto- 6 MACA NO. 629 OF 2011 rickshaw-3[rd] respondent-who was liable to pay the compensation amount. Hence, the 2[nd] respondent prayed that the claim petition be dismissed. 6. The Tribunal consolidated and jointly tried all the claim petitions. A witness was examined on behalf of the petitioner as PW1 and Exhibits A1 to A19 were marked in evidence. The 2[nd] respondent produced the insurance policy, which was marked in evidence as Exhibit B1. 7. The Tribunal, after appreciating the pleadings and materials on record, by its common award allowed all the claim petitions finding that there was composite negligence on the part of the drivers of the autorickshaw as well as car. Placing reliance on Exhibits A3 and A4 final reports and Exhibits A5 and A6 AMVI reports, which established that there was damage to both the vehicles. Accordingly, the Tribunal directed the 2[nd] respondent/ insurer to pay the compensation amount MACA NO. 629 OF 2011 7 to the petitioner. The respondent Nos. 2 or 3 was directed to pay an amount of Rs.1,00,000/- to the petitioner. 8. Aggrieved by the impugned award directing the 2[nd] respondent/insurer to pay the entire compensation amount, the 2[nd] respondent has filed the appeal. 9. Heard; Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/ 2[nd] respondent/insurer and Sri.Rejit, the learned counsel appearing for the respondent/petitioner. 10. The sole question that arises for consideration in the appeal is whether the direction of the Tribunal to the appellant to pay the entire compensation amount, despite the finding that there was composite negligence on the part of the driver of the car and the driver of the autorickshaw, is justifiable or not ? 11. The learned Senior counsel appearing for the appellant/insurer placed reliance on the decision of this MACA NO. 629 OF 2011 8 Court in **United India Assurance Co. Ltd. v. Mariamma George** [2010(2) KLT 44], wherein it was held that in a case of composite negligence, the driver,owner and insurance company of each vehicle can be held liable only to the extent of liability fixed on them based on the percentage of the negligence, and the insurer of one vehicle cannot be directed to make the entire payment of compensation. 12. The above legal position is no longer good law in view of the decision of the Honourable Supreme Court in **Khenyei v. New India Assurance Co. Ltd and others** [2015 (9) SCC 273], wherein a three Judge Bench ## has in paragraph 16 to 18 held as follows:- _16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. 2014 KHC 4058; 2014 (3) SCC 590; 2014 (2) KHC SN 4: 2014: 2014 (1) KLT 571: 2014(2) KLJ 224], the decisions in T.O. Anthony (supra) and Hemlatha (supra) have been affirmed, and this Court has laid down that where plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. He is_ MACA NO. 629 OF 2011 9 _entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v D.S. Mylarappa & Ors. [2008 KHC 6379: 2008 (13) SCC 198: AIR 2008 SC 2545:2008 (7) SCALE 496] and also as to joint tort feasors. This Court has referred to Charlesworth & Percy on negligence as to cause of action in regard to joint tort feasors thus:_ _“42. Joint tort-feasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under :_ _Wrongdoers are deemed to be joint tort-feasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually….. Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.” The question also arises as to the remedies available to one of the joint tort -feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in_ MACA NO. 629 OF 2011 10 _the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them. This Court in National Insurance Co. Ltd. v. Challa Bharathamma & Ors. [2004 KHC 1153: 2004 (8) SCC 517: 2004(3) KLT 454: AIR 2004 SC 4882] with respect to mode of recovery has laid down thus :_ _“13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executive Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.”_ MACA NO. 629 OF 2011 11 _17. In Oriental Insurance Co. Ltd. v. Nanjappan & Ors. [2004 KHC 1939 : 2004(13) SCC 224: 2005 SCC (Cri)148:AIR SC 1630: 2004 (119) Comp Cas 139 : 2004 (15) AIC 1(SC)] also, this Court has laid down thus :_ _“8. Therefore, while setting aside the judgment of the High court we direct in terms of what has been stated in Baljit Kaur's case [2004 (2) SCC 1] that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondentsclaimants within three months from today. The for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.”_ _18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to_ MACA NO. 629 OF 2011 12 _recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings._ _**Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.**_ _**What emerges from the aforesaid discussion is as follows** :_ _**(i) 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.**_ _**(ii) 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.**_ _**(iii) 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**_ MACA NO. 629 OF 2011 13 _**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.**_ _**(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 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.** (emphasis supplied)_ 13. In view of the categoric declaration of law in the **Khenyei (supra)** and the fact that the 3[rd] respondent is impleaded in the party array, and in view of the findings in Exhibits A3 and A4 final reports and Exhibits A5 and A6 AMVI reports, I hold that both the 1[st] and 4[th] respondents are equally responsible for causing the accident. Hence, I fix the contributory negligence in the ratio of 50:50. In view of the fact that the 2[nd] respondent has admitted the insurance coverage of the 14 MACA NO. 629 OF 2011 car, it is the 2[nd] respondent (appellant), who is to indemnify the liability of the 1[st] respondent arising out of the accident. Following the ratio in clause 18 (iii) of **Khenyei (supra)** , I direct the appellant/2[nd] respondent to pay the entire compensation amount to the petitioner and recover one half of the compensation amount from the 2[nd] respondent/3[rd] respondent in accordance with law. In the peculiar facts and circumstances of the case, the parties shall bear the respective costs. Sd/- **C.S.DIAS, JUDGE** avs