High Court of Kerela in one of its recent judgments held that the liability in case of composite negligence will not be borne only by one negligent party but will be joint and several.
The single-judge bench of Justice M.R. Anitha disposed off an appeal and set aside the instructions of tribunal in case of composite negligence and ordered the parties to make compensation to the aggrieved.
Brief Facts of the Case
In the present case of a petition was filed claiming compensation out of death of krinakutty who met with an accident while stepping into the stage carriage bus which is owned by respondent .
It was contended that another respondent stopped the vehicle touching the electrical line hanging over the road and the deceased was electrocuted when he was about to enter into the bus. The petitioners asked to be compensated by the KSEB supplying electricity board who was supplying electricity at that time ,it’s employees, and supra respondents. The matter was before the tribunal who held that the negligence in the accident was solely on part of the driver of the bus, and that the insurer must indemnify for the same. To which an appeal was filed in the high court of kerela by the insurer against the judgment of tribunal.
High Court's Observation
Before the High Court, Ld. Counsel for appellant submitted that police charge is against the driver of the bus as well as respondents the KSEB and the employees. But, without any evidence, Tribunal arbitrarily held that the driver alone is responsible for the accident and the appellant was held liable to indemnify the insured. High Court referred to the case New India Assurance Co.Ltd v. Pazhaniammal, and observed that none was examined by the tribunal to controvert the police charge .
The court observed that tribunal lost sight of liability of KSEB board and it’s employees as whenever there is thunder and lightning it is the duty of the Board and its officials to visualise
the hazards resulting out of it and to take effective measures to prevent casualties arising. Disapproving Tribunal’s view, the Court thus noted:
“So, when police charge expressly provides that accident happened due to the negligence of the driver of the bus as well as respondents KSEB and its employees the course adopted by the Tribunal in exonerating the Board and its employees in not taking proper care and caution cannot be approved.”
Further court contended that it cannot be imagined that the driver who is driving the vehicle will have any occasion to look into an electric line hanging.
However, noting that the incident occurred while the deceased attempted to step into the bus, the Court opined some liability can be cast upon the driver, owner and insurer of the vehicle as
well as of the board and its employees.
The Court was of the view that the respondents have joined in causing death of deceased and would be treated as joint tort-feasors. Reference was made to T.O.Anthony v. Karvarnan and
others, Khenyei Vs. New India Assurance Co. Ltd. & Ors. in this context and and the Court made relevance to composite negligence and contributory negligence and said the present case comes out as composite negligence so the direction of the Tribunal to pay the amount by the appellant/insurer as per the contract of insurance with the insured cannot be said as illegal since the liability is joint and several.
Tribunal’s directions to the extent of sole responsibility of the driver was set aside by HC.
Appeal was disposed with instructions to parties to compensate and bear their respective costs.
CASE TITLE: THE NATIONAL INSURANCE CO.LTD. V. NARAYAN AND ORS.
CASE DETAILS: MACA NO. 1628 OF 2013
CORAM: JUSTICE MR. ANITHA
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