New India Assurance Company Ltd. v. Satheesh Kumar P.R., K.K. Dinesan, Binu, Chellamuthu, Pratheesh, Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934 MACA.No. 1486 of 2012 () -----------------------AGAINST THE ORDER/JUDGMENT IN OPMV.71/2003 of ADDL.D.C. & MACT, PARAVUR DATED 30-06-2011 APPELLANT(S)/3RD RESPONDENT IN OP(MV) NO.71/03: ---------------------------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, PB NO.108, KODAVATHI SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA-683 101 ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, KADAMKULATHY TOWERS, M.G.ROAD ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S)/CLAIMANT AND RESPONDENTS 2, 3 TO 6 IN OP(MV) NO.71/03.: -------------------------------------------------------------------------------------------------------------------- ## 1. SATHEESH KUMAR P.R., AGED 27 YEARS - S/O.RAMAKRISHNAN, PULIKKAL HOUSE, KADAMAKKUDI PIZHALA P.O., PARAVUR TALUK, ERNAKULAM DISTRICT PIN 682027. 2. K.K.DINESAN S/O.KOCHAPPAN, KAYIPURATH HOUSE, MANJUMMAL P.O. UDYOGAMANDAL, ALUVA-683501, ERNAKULAM DISTRICT. 3. BINU - S/O.JOSEH, THOTTIPARAMBIL HOUSE, MANJUMMAL P.O. ELOOR, ERNAKULAM DISTRICT, PIN 683501. 4. CHELLAMUTHU S/O.CHINNA SWAMI, KATTITHARA HOUSE, NEAR SNDP OFFICE ANGAMALI P.O., ERNAKULAM DISTRICT, PIN 683572. ## 5. PRATHEESH - S/O.RAVI, THANKASSERIL HOUSE, MUTTINAKOM VARAPUZHA P.O., ERNAKULAM DISTRICT-683517. 6. ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, ANGAMALI P.O., PIN 683572. R1 BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) R2-R3 BY ADV. SRI.M.A.SHIHAB R2-R3 BY ADV. SRI.K.A.ANI JOSEPH R BY SRI.GEORGE CHERIAN (THIRUVALLA) R6 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: al/- ## **HARUN-UL-RASHID,J.** ## **------------------------------------------------------M.A.C.A No.1486 OF 2012 --------------------------------------------------------Dated this the 18[th] day of February 2013** ## **JUDGMENT** The New India Assurance Company is the appellant. The appeal is directed against the Award dated 30.6.2011 in O.P.(MV) No. 71/03 on the file of the Motor Accidents Claims Tribunal, North Paravur. The parties hereinafter are referred to as arrayed in the claim petition. 2. The Tribunal allowed the claimant to recover a sum of Rs. 49,500/- as compensation with 7.5% interest. The respondents 1 to 5 in the original petition are directed to deposit the said amount before the Tribunal within one month from the date of Award, failing which the claimants will be entitled to recover the same by executing the award from Respondent Nos.1 to 5 jointly and severally. The Tribunal further made it clear that if one of the tortfeasors satisfies the award against the claimant, it is open to the tortfeasor, who satisfies the award, to proceed against the other tortfeasors for contribution. 3. The accident took place on 12.10.2002, while the claimant was travelling as a pillion rider on a motor cycle. According to the claimant, a goods autorikshaw which was going ahead of the motor cycle, abruptly turned towards right side in hectic speed and as a ## M.A.C.A.No.1486/2012 2 result, the motor cycle happened to hit on the rear side of the autorikshaw and the petitioner sustained serious injuries including fracture on both bones of right hand. 4. The Tribunal found that, the claimant sustained fracture on both bones of right hand and that the accident was caused due to the negligence of both drivers of the vehicle involved in the accident. Therefore, the Tribunal directed that 50% negligence each can be attributed against the 2[nd] respondent and additional 5[th] respondent. 5. Respondent Nos. 1, 2 & 3 are owner, driver and insurer of the goods autorikshaw. Additional respondents 4, 5 & 6 are respectively owner, driver and insurer of the motor cycle involved in the accident. 6. The Tribunal after recording the finding that the accident was caused due to the composite negligence of drivers of both vehicles fixed the percentage of negligence as 50% each. The Tribunal relying on the decision **T.O.Anthony v. Karvarnan and others** reported in ( **2008 ACJ 1165)** held that each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and that the injured person has a choice of proceeding against all or any of them. On the basis of the said finding, the Tribunal held that respondents 1 to 3 and additional respondents 4 and 5 are jointly and severally liable for the compensation amount ## M.A.C.A.No.1486/2012 3 with interest and costs. 7. I have examined the legal principles laid down by the Apex Court in the decision **T.O.Anthony v. Karvarnan and others** reported in ( **2008 ACJ 1165).** That was a case of head on collision. A K.S.R.T.C. bus and a private bus were involved in the accident. The driver of the K.S.R.T.C. bus filed claim petition claiming compensation. The apex court noticed the fact that in many cases, including the one at hand, the Tribunal fell in to a common error in proceeding on the assumption that composite negligence and contributory negligence are one and the same. The apex court held that where a 3[rd] party, other than the driver or owner of the vehicles involved, claims damages for loss or injuries in an accident involved in a motor vehicle, compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, it was held that the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 8. The Apex court held that composite negligence refers to the negligence on the part of the two or more persons and that where a ## M.A.C.A.No.1486/2012 4 person is injured as a result of negligence on the part of two ore more wrong doers, it is stated that the person was injured on account of composite negligence of those wrong doers. In such a case, each wrong doer, is jointly and severally liable to the injured to pay the entire damages and the injured person has the choice of proceeding against all or any of them. The apex court further held that in such a case, the injured need not establish the extent of responsibility of each wrong doers separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. The Apex court also examined the differences between the composite negligence and contributory negligence. The apex court held that where a person suffers injury, partly due to 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. In the said case, the apex court found that contributory negligence on the part of the appellant/claimant is only 25% and not 50%. The court modified the award to the extent of contributory negligence on the part of the claimant is only 25%. 9. In the present case, two vehicles are involved in the accident. This is a case where 3[rd] party claim damages for loss or injuries and compensation is payable in respect of composite M.A.C.A.No.1486/2012 5 negligence of the drivers of both vehicles. In this case, the Tribunal examined the extent of negligence on the part of the drivers of both vehicles, the Tribunal on evidence found that 50% negligence each can be attributed against the 2[nd] respondent additional 5[th] respondent. 10. Following the decision of this Court in **National Insurance Company v Shivasankara Pillay** reported in **(1995 KLT 51),** after analysing the factual situation similar to the present case, this court held that, where there is absolutely no concert or common design, the liability depends purely on the aspect of, negligence on the part of the driver, vicarious liability on the part of the owner, and liability of the insurance company to indemnify on the basis of the contract of insurance. In such case, the liability of parties of each vehicle cannot be shared each other. The owner of a vehicle can be held vicariously liable only to the extent of the negligence caused by his employee, who is the driver of his vehicle. The insurer of a vehicle can be fascened with liability only on the basis of the contract of insurance and that too only to indemnify the insured of that vehicle. Since the owner of the other vehicle is not the insured, who had entered into any contract of insurance such insurance company cannot be held liable to indemnify a person, who is not at all insured by virtue of any contract of insurance. M.A.C.A.No.1486/2012 6 11. Therefore, a more appropriate view in the case of composite negligence is to apportion the percentage of negligence and to fix up the liability on each vehicle to the extent of negligence. In such cases, it is not correct to say that the sufferer of the wrong, who is the victim of the accident, has got any choice to sue any one of the owner or insurer for the total damages for which they are liable beyond the extent of negligence caused by the driver of such vehicle, when the drivers of both the vehicles are not 'joint tortfeasors' but only 'separate tortfeasors'. ` 12. The Insurance Company is aggrieved by the direction issued by the Tribunal to the extent of granting freedom to proceed against all or any of the tortfeasors. The grievance of the appellant is that after apportioning the claim in the ratio of 50:50, the direction in the impugned award making the parties jointly and severally liable to satisfy the award is incorrect and contrary to the principles of law. 13. In the light of the principles of law discussed, and following the decision of this Court in **United India Insurance Co. Ltd. v. Mariamma George** reported in **(2010(2) 44),** the finding of the Tribunal that respondents 1 to 3 and additional respondents 4 and 5 are liable for the entire compensation amount with interest and proportionate costs is set aside. The said direction is modified. There will be a direction to the appellant to satisfy 50% of the award M.A.C.A.No.1486/2012 7 amount, if not already deposited, with proportionate costs. The claimant is entitled to realise balance 50% of the award amount with interest and proportionate cost from the additional respondents 4 and 5 jointly and severally. The appeal is disposed of as above. Sd/- **HARUN-UL-RASHID JUDGE** al/-