The Bombay High Court dismissed an appeal challenging the judgment and award dated 6.12.2006 passed by the learned Member of the Motor Accident Claims Tribunal, whereby the appellant/National Insurance Company Limited was directed to pay compensation of Rs.2,21,250/- to the claimants. The Court observed that it is the choice of the petitioner either to claim compensation from both the tortfeasors 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.
Brief Facts:
The alleged accident took place on 6.6.2002 when Bhaskar (the deceased) was traveling from Gadchiroli to Wadsa in Tempo Trax owned by respondent No.9, and insured with the appellant/National Insurance Company Limited. When the said Tempo Trax reached Kitali Shivar, a Luxury Bus dashed against the said Tempo Trax. In the said accident, the deceased died. Regarding the said accident, an offence was registered against the driver of the Luxury Bus. The said Luxury Bus was owned by respondent No.7, and was insured with respondent No.8.
As the said accident took place, according to the claimants, due to the rash and negligent driving of the driver of the Luxury Bus, and the Tempo Trax was also involved in the accident, they claimed compensation from both the vehicles’ owners and insurance companies. It was further contended by the claimants that at the time of the said accident, the age of the deceased was 47 years old, serving as a teacher, and drawing a salary of Rs.10,650/-. As the said accident took place due to the rash and negligent driving of the driver of the Luxury Bus, the claimants are claiming compensation under pecuniary and non-pecuniary damages. Learned Member of the tribunal held that respondent No.9, owner of the Tempo Trax, and appellant/National Insurance Company Limited, liable to pay the compensation to the claimants jointly and severally. Being aggrieved, the present appeal has been preferred.
Contentions of the Appellants:
The Learned Counsels for the Appellants argued that the crime was registered against the driver of the Luxury Bus. The spot panchanama also showed that it was the driver of the Luxury Bus who is responsible for the said accident. Learned Member of the Tribunal erroneously held the appellant/National Insurance Company Limited liable to pay the compensation. Moreover, the owner of the Tempo Trax contravened the terms and conditions of the policy. Thus, the appellant/National Insurance Company Limited is not liable to pay any compensation.
Contentions of the Respondent:
The learned counsel for the respondent submitted that the claimants are entitled to receive the compensation as per the award passed by the learned Member of the tribunal.
Observations of the Court
The Court observed that where a person is injured without any act or omission from his part, but as a combined effect of the negligence of two or more persons, it is a case of 'composite negligence', and not a case of 'contributory negligence'. The Court noted that the contention of the appellant that the case being of contributory negligence, the claimants are not entitled to receive compensation from the appellant with whom the offending vehicle Tempo Trax was insured, is not sustainable.
Further, the Court said once the court comes to the conclusion that the case is one of composite negligence, damages cannot be apportioned. It is the choice of the petitioner either to claim compensation from both the tortfeasors 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 contention of the appellant not being liable due to the breach of policy, the Court observed that the company has to establish not only that there is a breach of policy but also that such breach is so fundamental that it puts an end to the contract and that such breach had caused the accident; these relevant aspects are missing in the present case.
The decision of the Court:
The Bombay High Court, dismissing the appeal, held that the appeal filed by the appellant/National Insurance Company Limited is devoid of merits.
Case Title: The Divisional Manager vs Smt. Hemlata & Ors.
Coram: Hon’ble Justice Urmila Joshi-Phalke
Case no.: FIRST APPEAL NO. 1569 OF 2008
Advocate for the Appellant: Mr. C. A. Anthony
Advocate for the Respondent: Mr. Vivek Thote, and Mr. M. M. Kalar
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