Partly allowed

Oriental Insurance Co. Ltd. v. Smt. Beena Bhardwaj and Ors.

Allahabad HC7 Aug 2019FAFO/859/2000

Case brief

AI extract

What is this about?

The Division Bench disposed of four appeals filed by an insurance company arising from a common motor accident resulting in four deaths. The court distinguished between contributory and composite negligence, holding that while the car driver was 25% contributorily negligent, the primary compensation amounts for other claimants involved composite negligence. Orders were remanded to the Motor Tribun

What did the court decide?

Appeals partly allowed; 25% deduction permitted for the car driver's heirs; other matters treated under composite negligence. Record remanded to the Tribunal.

Oriental Insurance Co. Ltd. Vs Smt. Beena Bhardwaj… — Motor Accident Claims | Allahabad HC (2019)

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No.859 of 2000 Appellant :- Oriental Insurance Co. Ltd. Respondent :- Smt. Beena Bhardwaj And Ors. Counsel for Appellant :- K.S. Amist

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AND

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Case :- FIRST APPEAL FROM ORDER No. - 860 of 2000 Appellant :- Oriental Insurance Co. Ltd. Respondent :- Km. Bhagwan Dei And Anr. Counsel for Appellant :- K.S. Amist

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AND

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Case :- FIRST APPEAL FROM ORDER No. - 861 of 2000 Appellant :- Oriental Insurance Co. Ltd. Respondent :- Smt. Munni Sharma And Ors. Counsel for Appellant :- K.S. Amist

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AND

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Case :- FIRST APPEAL FROM ORDER No. - 867 of 2000 Appellant :- Oriental Insurance Co. Ltd. Respondent :- Smt. Leelawati And Ors. Counsel for Appellant :- K.S. Amist

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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All these appeals arise out of the same accident hence they are being disposed of by a common judgment.

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The claimants had preferred claim petition before the Motor Accident Claims Tribunal being claim petition nos. 3/1993, 8/1993, 12/1993 and 13/1993 at Rampur. The Tribunal held in favour of the claimant and granted requisite compensation in all the four matters with 10% rate of interest.

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This has aggrieved the Insurance company. As according to the Insurance company the accident which occurred on 1.00 a.m. night intervening between 26 – 27.6.1992 between two vehicles. The accident is not in dispute. There is no breach of policy. The Income of the deceased/injured is also not in dispute before this Court and, therefore, detailed facts are not mentioned. The only

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ground raised is that the driver of Car was sole negligent and in the alternative, he had contributed to the accident having taken place and that the finding holding that the truck driver was the sole author of the accident is bad in eye of law.

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The appellant is Insurer of the truck, which was going in front of the Car, which was being plied by one of the deceased and the driver of the Car died in the accident.

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It is submitted by Sri K.S. Amist that this is a case of contributory negligence as a person driving the car, which is plying on the road, has to be more conscious. The driver of the car, therefore, was solely negligent as the driver of the truck was driving the truck ahead of the Car. The driver of the Car was driving at great uncontrolarable speed and that is how he came and dashed with the truck which had become stationary and, therefore, the driver of the Car should be considered to be solely negligent. In the alternative, it is submitted that if he was not solely negligent, he was also contributory to the accident having taken place.

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It is an admitted position of fact that the driver of the truck has not stepped into witness box. There was no chargesheet filed and a report was that the truck became stationary.

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While going through principles for deciding the negligence of the drivers of the vehicle, it is submitted that the driver of the Car has to be presumed to be driving the Car at high speed as it dashed from behind and 4 persons died.

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The concept of contributory negligence has been time and again evolved, decided and discussed by the

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courts.

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The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “ res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

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The term contributory negligence has been discussed time and again a person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows:

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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 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 & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:

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“ 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

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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.

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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. ”

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The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 which has held as under:

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“ 16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a

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relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

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17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

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18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

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19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 . From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

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20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the

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parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

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In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per threeJudge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840) .

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By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side.”

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The insurance company has failed to prove that accident occurred due to carrying of more persons as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligent on the part of the scooterist, cannot be benefitted. The negligent act must contribute to the accident having taken place. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Antother Vs.

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Oriental Insurance Company Limited, AIR 2018 SC 1143 .

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The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:

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4. It is a case of composite negligence where injuries have been caused to the claimants by combined

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wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

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14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, 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 separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :

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“ 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 separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or

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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.

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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.”

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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 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 – trailortruck 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.

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What emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant

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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.

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(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.

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(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 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.”

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Hence 25% negligence is attributed to the driver of the Car. As while driving the car, he has dashed with the truck. The truck was not stationary but brake were applied. The chargesheet was laid against the driver of the truck. While going through the factum of accident, the impact of the vehicle coming from behind and dashing whereby 4 people died goes to show that the driver of the Jipsee was also driving at some speed. The fan belt of the truck broke down that is how he suddenly stopped the vehicle but he had kept the yellow back lights on. The evidence goes to show that the driver of the Car was also negligent to the tune of 25 per cent. Hence, from the claim petition filed by the heirs of the driver of the said vehicle, 25% will have to be deducted. However, as far as the other persons are concerned, it is a case of composite negligence.

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As far as the compensation in all the four matters are concerned, as far as claim petition No.3/1993 is

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concerned, a sum of Rs.4,46,000/- is awarded. As far as claim petition nos. 8/1993 and 12/1993 are concerned, the amount of Rs.1,92,000/- each and in claim petition 13/1993, the amount awarded is Rs.3,60,000/-. The amounts awarded cannot be said to be so exorbitant that they require any interference rather the Tribunal has been conservative in awarding the said amount and as the amount is very meagre and more than 20 years have elapsed, the amount may not be recovered from the heirs of the deceased driver as a special case.

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With these observations, the appeals are partly allowed. The amount of 25% deposited by Oriental Insurance Company will be at liberty to recover from the owner, driver and Insurance company of the other Car. As far as other 3 matters are concerned, they are of composite negligence.

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The record and proceedings in all four matters be sent back to the Tribunal forthwith.

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Order Date :- 7.8.2019 Irshad

Oriental Insurance Co. Ltd. v. Smt. Beena Bhardwaj and Ors.

Case brief

What is this about?

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Oriental Insurance Co. Ltd. v. Smt. Beena Bhardwaj and Ors.

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