The Oriental Insurance Company Limited v. Reghunadhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **MACA.NO. 323 OF 2017 () ------------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.307/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 14-10-2016** **-----------------** **APPELLANT(S)/5TH RESPONDENT:** **---------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED KODUNGALLUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 & 2:** **-----------------------------------------------** ## **1. REGHUNADHAN** **S/O. KUNJIMAMI, PADINJAREKUTT HOUSE, EDAVILANGU, KODUNGALLUR TALUK, PIN - 680 671.** **2. ABIN. S/O. RAMAKRISHNAN, KARYEZHATH HOUSE, ERIYAD, KODUNGALLUR TALUK, PIN - 680 666.** **3. SANTHOSH, S/O. GOPI, CHAKKAMATTIL HOUSE, NARAYANAMANGALAM, PULLUT, KODUNGALLUR TALUK, PIN - 680 663.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.323 of 2017 ---------------------------------Dated this the 30[th] day of June, 2017** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.307 of 2013 of the Motor Accidents Claims Tribunal, Irinjalakuda, by the insurer. One Raghunadhan sustained injuries in a motor accident on 30.12.2010 at 5.15 a.m. while he was travelling in a bus bearing registration No.KL-2/P-9869. When it reached at Azhikode-Kara, the bus collided with a mini lorry bearing No.KL-8-9261 as a result, the passengers in the bus sustained serious injuries. The Tribunal awarded a sum of Rs.81,750/- with 9% interest per annum and costs from R1 to R5 jointly and severally and also observed that the inter-se negligence between R1 and R3 is left open to be decided in other proceedings. Being aggrieved by that, the insurer preferred this appeal. 2. The 1[st] respondent, who is an injured in this case, contended that the accident was due to the rash and negligent driving of the driver of the Mini lorry and driver M.A.C.A. No.323 of 2017 2 of the bus. In the trial court R1, R2 and R4 remained exparte and the case against R3 was dismissed on the ground of not taking any steps. The appellant(R5) admitted the insurance of the vehicle KL-2/P-9869 in the lower court. Both parties did not adduce any oral evidence, hence documents were marked as Exts.A1 to A6. 3. Appellant contended that the investigation conducted by the police in the criminal case shows that the driver of the Mini lorry alone was negligent for the accident. The driver of the bus is a necessary party. Since no steps were taken against him, the learned tribunal dismissed the claim against him. In the absence of the driver in the party array, no negligence can be fastened upon the owner of the vehicle. Even though composite negligence is found against both drivers, the percentage of liability was not fixed by the lower court. Hence, no composite negligence can be attributed against both vehicles. 4. When a person sustained any injury without M.A.C.A. No.323 of 2017 3 any negligence on his part but as a result of the combined effect of negligence of two other persons that action can be called as a composite negligence. While two vehicles collided with each other and the claimant has not contributed any part, it can be called as a case of composite negligence of both vehicles and the liability can be fixed on the basis of negligence contributed by the vehicles. In such a situation, the apportionment of the amount and the percentage of inter-se liability are to be decided by the tribunal while fixing the part of composite negligence. 5. The principle of composite negligence and the apportionment of liability has been decided by the apex court in **A.P.S.R.T.C. and Anr.** vs. **K. Hemalata and Ors. [2008 ACJ 2170]** in which paragraph 10 reads as follows: “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 M.A.C.A. No.323 of 2017 4 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, not 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 this part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. ” 6. In this case, the accident between the bus and the mini lorry occurred due to the negligence of both the drivers. The learned Tribunal found that both drivers were responsible for the accident and awarded M.A.C.A. No.323 of 2017 5 compensation. But, the percentage of liability was not fixed. Ext.A1 is the copy of the FIR in Crime No.1739 of 2010 of Kodungallur Police station, Ext.A2 is the Wound Certificate, Ext.A3 is the Final Report, A4 is the Discharge Card, A5 is the Medical bill and A6 is the Disability Certificate which shows that the injured has a permanent disability of 15%. There is no dispute with regard to disability of the claimant, by the drivers of both vehicles. 7. A perusal of Ext.A3 shows that the rashness and negligence of the driver of the lorry resulted in the accident. When any liability is fixed upon the owner of the bus, the driver is also a necessary party in which the learned Tribunal removed him from the party array. The owner is vicariously liable for the default of the driver. When the driver is not arrayed as a party, the learned Tribunal cannot fasten liability only upon the owner. Hence that proceedings removing the driver from the party array is liable to be set aside. Apex Court in **Pawan Kumar and Anr. Etc.** vs. **Harkishan Dass Mohan Lal** ## M.A.C.A. No.323 of 2017 6 **and Ors [2014 ACJ 704]** discussed the principle of fixing composite negligence: The distinction between the principles of composite and contributory negligence has been dealt with in Winfield and Jolowicz on Tort (Chapter 21) (15[th] Edition, 1998). It wound be appropriate to notice the following passage from the said work: WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff's advantage to show that that he has suffered the M.A.C.A. No.323 of 2017 7 same, indivisible harm at the hands of a number of Defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one Defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive fro the point of view of the solvent Defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. ------- The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous..... 8. The liability of the driver and owner are to be apportioned properly. A perusal of the documents shows that the Police charge sheeted the driver of the Mini Lorry alone. The learned Tribunal awarded Rs.81,750/with 9% interest per annum from both vehicles. The liability is fixed equally at the rate of 50:50 and the M.A.C.A. No.323 of 2017 8 observation that the case against R3 was dismissed is set aside. Notice already issued to the driver of the bus but there was no appearance for the driver of the bus. 9. Hence, the owner of the Mini lorry is liable to pay compensation for the tortious act of the 1[st] respondent. The 4[th] respondent owner is liable to pay compensation for the tortuous act of the 3[rd] respondent, the driver of the bus. Their liability is fixed as 50:50, both parties are directed to produce cheque for Rs.40,875/each with 9% interest and proportionate cost within 30 days from the date of receipt of a copy of this judgment. The insurance company admitted the insurance of both vehicles, hence the insurer is liable to pay compensation. The observation in the lower court judgment that inter-se liability between the first and third respondents is left open, is hereby set aside and this appeal is disposed of as above. ## Sd/- NS **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge