CIVIL APPEAL 1388 of 2012 on 11 August 2005

JUDGMENT:

1The Oriental Insurance Co.Ltd., represented by its Branch Manager/ 2[nd] respondent in MVOP.No.62 of 2006 on the file of Motor Accidents Claims Tribunal – Cum – I Additional District Judge, Nellore preferred this MACMA questioning the order dt.29.03.2010granting compensation amount of Rs.1,60,000/- with interest at 7.5% p.a., awarded by the Tribunal to the claimant.Manager/ 2[nd] respondent in MVOP.No.62 of 2006 on the file of Motor Accidents Claims Tribunal – Cum – I Additional District Judge, Nellore preferred this MACMA questioning the order dt.29.03.2010granting compensation amount of Rs.1,60,000/- with interest at 7.5% p.a., awarded by the Tribunal to the claimant.

2For convenience's sake, hereinafter, the parties will be referred as they were arrayed in MVOP.No.62 of 2006.they were arrayed in MVOP.No.62 of 2006.

3The claim petition is filed by the deceased's parents under Section 166 of Motor Vehicles Act, seeking to grant compensation amount of Rs.3,00,000/- on account of their son's death in the accident that occurred on 11.08.2005 while the deceased was proceeding in an auto bearing registration No.AP16X3657 to go towards Kota, and at about 02.15PM, when the auto was moving near Chandrasekharapuram, a lorry bearing No.AP26T8789 came in the opposite direction towards Guduru's side in a rash and negligent manner and dashed against the auto; the deceased and seven others who were in the auto sustained injuries, and the driver of the auto also died in the accident. 166 of Motor Vehicles Act, seeking to grant compensation amount of Rs.3,00,000/- on account of their son's death in the accident that occurred on 11.08.2005 while the deceased was proceeding in an auto bearing registration No.AP16X3657 to go towards Kota, and at about 02.15PM, when the auto was moving near Chandrasekharapuram, a lorry bearing No.AP26T8789 came in the opposite direction towards Guduru's side in a rash and negligent manner and dashed against the auto; the deceased and seven others who were in the auto sustained injuries, and the driver of the auto also died in the accident.

4The 1[st]respondent remained set exparte. The 2[nd] respondent filed a counter by submitting that the said lorry was not insured. The driver of the lorry had no valid driving license, and the auto was overloaded and unable to control the auto, the driver of the auto dashed against the lorry. Hence, the accident occurred due to the rash and negligent driving of the driver of the auto.counter by submitting that the said lorry was not insured. The driver of the lorry had no valid driving license, and the auto was overloaded and unable to control the auto, the driver of the auto dashed against the lorry. Hence, the accident occurred due to the rash and negligent driving of the driver of the auto.

5Based on pleadings, Tribunal framed relevant issues. Before the Tribunal on behalf of petitioners, PWs.1 and 2 were examined and marked.A1 to A4 and on behalf of the 2[nd] respondent, RW.1 was examined, and Exs.B1 to B3 were marked. Tribunal on behalf of petitioners, PWs.1 and 2 were examined and marked.A1 to A4 and on behalf of the 2[nd] respondent, RW.1 was examined, and Exs.B1 to B3 were marked.

6After considering the evidence on record, Tribunal held the accident occurred due to negligent driving of both vehicles referred to above, and the lorry driver contributed 75% of the negligence to the auto. There was a head-on collision between both vehicles. occurred due to negligent driving of both vehicles referred to above, and the lorry driver contributed 75% of the negligence to the auto. There was a head-on collision between both vehicles.

7Heard the arguments of learned counsel for the appellant and the respondents and perused the record. respondents and perused the record.

8Learned counsel for the appellant submits that the Tribunal erred in directing the appellant's insurance company to pay the entire compensation, including 25% fixed on the auto and recover the same from the owner of the auto, who is not a party to the OP. It is further contended that when the Tribunal has fixed 25% of the contributory negligence on the auto owner, it ought not to have directed the appellant to pay the entire compensation. in directing the appellant's insurance company to pay the entire compensation, including 25% fixed on the auto and recover the same from the owner of the auto, who is not a party to the OP. It is further contended that when the Tribunal has fixed 25% of the contributory negligence on the auto owner, it ought not to have directed the appellant to pay the entire compensation.

9Per contra, the learned counsel appearing for respondents supported the findings and observation of the learned Tribunal. supported the findings and observation of the learned Tribunal.

10Now the point for determination is whether the Tribunal is justified in directing the appellant insurance company to pay the entire compensation amount despite fixing the liability on the auto driver at 25%. in directing the appellant insurance company to pay the entire compensation amount despite fixing the liability on the auto driver at 25%.

11After careful reading of the material on record this court is of the view that there is no serious dispute with regard to the quantum of compensation awarded by the Tribunal. view that there is no serious dispute with regard to the quantum of compensation awarded by the Tribunal.

12The deceased was aged about 14 years on the date of the accident; he was a student in the 9[th] class. The petitioners are his parents. The 1[st] respondent is the owner of a lorry, and the 2[nd] respondent is the vehicle's insurer. To prove the accident, the petitioners examined PW.2, one of the passengers in the auto, and relied on Ex.A1 FIR and Ex.A2 charge sheet, Ex.A3 Postmortem Report and Ex.A4 inquest report. It is not in dispute that the deceased's death occurred due to injuries sustained in the accident. The Tribunal elaborately considered evidence placed before it and concluded that the driver of the lorry contributed 75% of negligence and the auto driver contributed 25% of negligence and thereby collision took place between both the vehicles and due to the collision, the driver of the auto and seven passengers died in the accident. he was a student in the 9[th] class. The petitioners are his parents. The 1[st] respondent is the owner of a lorry, and the 2[nd] respondent is the vehicle's insurer. To prove the accident, the petitioners examined PW.2, one of the passengers in the auto, and relied on Ex.A1 FIR and Ex.A2 charge sheet, Ex.A3 Postmortem Report and Ex.A4 inquest report. It is not in dispute that the deceased's death occurred due to injuries sustained in the accident. The Tribunal elaborately considered evidence placed before it and concluded that the driver of the lorry contributed 75% of negligence and the auto driver contributed 25% of negligence and thereby collision took place between both the vehicles and due to the collision, the driver of the auto and seven passengers died in the accident.

13As seen from the order of the Tribunal, the owner and insurer of the auto are not made parties. The Tribunal observed that the 2[nd]respondent has not proved that the lorry driver had no driving license. After careful analysis of the evidence on record the Tribunal observed that respondents 1 and 2 have to pay the total compensation amount it is a case of composite negligence. It is observed the total compensation amount can be recovered from 1st respondent; after paying such compensation amount, they are entitled to recover 1/4[th] of the compensation amount from the owner and insurer of the auto. In a decision reported in 2015 (4) ALD 98 SC, the Hon'ble Apex Court held that "in a case of composite negligence, the claimant is entitled to sue both or any one of the joint tort feasors to recover the entire compensation as the liability of joint tort feasors is joint and several. In the case of composite negligence, apportionment of compensation between two tort fears vis-a-vis the claimant is not permissible. He can recover at his option whole damages from any of them".auto are not made parties. The Tribunal observed that the 2[nd]respondent has not proved that the lorry driver had no driving license. After careful analysis of the evidence on record the Tribunal observed that respondents 1 and 2 have to pay the total compensation amount it is a case of composite negligence. It is observed the total compensation amount can be recovered from 1st respondent; after paying such compensation amount, they are entitled to recover 1/4[th] of the compensation amount from the owner and insurer of the auto. In a decision reported in 2015 (4) ALD 98 SC, the Hon'ble Apex Court held that "in a case of composite negligence, the claimant is entitled to sue both or any one of the joint tort feasors to recover the entire compensation as the liability of joint tort feasors is joint and several. In the case of composite negligence, apportionment of compensation between two tort fears vis-a-vis the claimant is not permissible. He can recover at his option whole damages from any of them".

14By reading the judgment of the Hon'ble Apex Court this court is of the view that it is open to the court/tribunal to determine inter se extent only in case all the joint tortfeasors are impleaded. The inter se liability is to be decided based on inter se negligence. It would not be appropriate for the Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors, i.e., the owner of the auto.the view that it is open to the court/tribunal to determine inter se extent only in case all the joint tortfeasors are impleaded. The inter se liability is to be decided based on inter se negligence. It would not be appropriate for the Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors, i.e., the owner of the auto.

15For the reasons stated above this court believes that though the Tribunal has fixed the compensation amount basing on the material on record, it is not supposed to determine the extent of composite negligence in the absence of owner and insurer of the auto. In case of composite negligence, the claimants are entitled to sue both or any of the tortfeasors. The claimants are entitled to recover the entire compensation amount at their option from any of the tortfeasors. This court cannot find fault in the direction given by Tribunal to recover the whole amount from respondents 1 and 2 Tribunal has fixed the compensation amount basing on the material on record, it is not supposed to determine the extent of composite negligence in the absence of owner and insurer of the auto. In case of composite negligence, the claimants are entitled to sue both or any of the tortfeasors. The claimants are entitled to recover the entire compensation amount at their option from any of the tortfeasors. This court cannot find fault in the direction given by Tribunal to recover the whole amount from respondents 1 and 2

16Because of the discussion above, I do not find any substance in the appeal, nor do I see any reason to interfere with the impugned order in the present appeal. Accordingly, the appeal, devoid of merits, is hereby dismissed without costs. The order dt.29.03.2010 passed by the Tribunal in MVOP.No.62 of 2006 is hereby confirmed.appeal, nor do I see any reason to interfere with the impugned order in the present appeal. Accordingly, the appeal, devoid of merits, is hereby dismissed without costs. The order dt.29.03.2010 passed by the Tribunal in MVOP.No.62 of 2006 is hereby confirmed.

17Miscellaneous petitions, if any, are pending shall stand closed.

Date : 11.10.2022 BV/KGM

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JUSTICE T MALLIKARJUNA RAO

BV/KGM

HON’BLE SRI JUSTICE T MALLIKARJUNA RAO

MACMA.No.1388 OF 2012

Dated 11.10.2022