Bombay High Court
Sangita Prakash Pawar And Ors vs Mahadeorao R Mahadik And Ors on 7 June, 2017
Bench: G.S. Patel
Sangita Prakash Pawar & Ors v Mahadeorao R Mahadik & Ors
28-FA1180-12.DOC
Talwalkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1180 OF 2012
1. Sangita Prakash Pawar,
2. Shubhangi Ajeet Shinde,
Aged about 25 years.
3. Abhijeet Prakash Pawar,
Aged about 7 years.
4. Hirabai Anandrao Pawar,
Age about 59 years,
All are residing at Gaikwad Chawl,
Room No. 15, Opp. Mohan Nagar,
Sion-Chunabhatti, Hill Road,
Mumbai - 400 022 ... Appellants
versus
1. Mahadeorao R Mahadik,
At & Post Pulachi Shirab, Tal.:
Hatkanangale, District: Kolhapur
2. The New India Assurance
Co ltd.,
87, M.G. Road, Fort, Mumbai 400
001
3. Navlakhs Satyendra
Birdichand,
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T/G/30, Truck Terminal, Steel
Market Complex, Opp. Libra Weigh
Bridge, Kalamboli, Taluka Panvel,
District Raigad.
4. The New India Assurance
Co ltd.,
New India Bhava, M.G. Road, Fort,
Mumbai 400 001 ... Respondents
A PPEARANCES
FOR THE APPELLANT TJ Mandon.
FOR THE RESPONDENT DS Joshi.
CORAM : G.S.Patel, J.
DATED : 9th June 2017
ORAL JUDGMENT:
1. The First Appeal is directed against an order 28th February
2011 rendered by the Hon'ble Chairman of the Motor Accidents
Claims Tribunal, Mumbai in a claim application brought by the heirs
of a person who died in a vehicular accident.
2. The previous orders dated 20th January 2016 and 27th
September 2016 clearly indicated that the appeal would be taken up
for final hearing at the stage of admission. Notice was issued to all
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the Respondents including the 1st Respondent. The Office noting
shows that the notice is served. The 1st Respondent has remained
absent.
3. The deceased, Prakash Pawar, was at the material time a
driver with BEST. As there is no dispute in this appeal about
quantum, I do not think it is necessary to address questions of
salary, multiplier used and so on. The issue at hand is indeed narrow
and turns on the correct legal position in regard to what is known as
"composite negligence" when there is more than one vehicle
involved.
4. To the facts of this particular tragedy. On 5th June 1997,
almost exactly 20 years ago to the day, at about 3:55 am in the early
hours of the morning, Pawar was travelling in a milk tanker No.
MH-09-Q-5546 on the Mumbai Pune road. The milk tanker was in
the vicinity of village Vaksai in Lonavla Taluka when the accident
occurred. It seems there was a collision between milk tanker and
another vehicle, a gas tanker No. MCT-1693. The gas tanker was in
front of the milk tanker. Both were proceeding in the same direction.
There is no dispute that both were in same side of the road. There is
also no dispute that the rear right side of the gas tanker was
damaged in this collision. A lady named Surekha Ghorpade died on
the spot. Pawar was one of those injured. He later succumbed to his
injuries. None of Pawar's heirs, the Applicants, were eye witnesses.
In their claim, they contended that the accident was a result of
"composite negligence" of the two tankers, i.e., the milk tanker and
the gas tanker. As a result, they claimed that owners and the
insurers of both vehicles were jointly and severally liable.
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5. The original Opponent No. 3, the New India Assurance Co
Ltd, was the insurer of both vehicles.
6. The claim having been filed, notices were issued to all parties.
Opponent No. 1 (Respondent No. 1 to the appeal) was the owner of
the milk tanker. Opponent No. 2, one Navlakha Satyendra
Birdichand, owned the gas tanker. Neither entered appearance or
contested the proceedings. They are Respondent Nos. 1 and 3
respectively in the present appeal. The claim proceeded ex parte
against both.
7. The New India Assurance Company Ltd, Opponent no. 3
(joined as Respondent Nos. 2 and 4 to this appeal) filed a written
statement and contested the proceedings. It raised several distinct
defences including that including of non-joinder of necessary
parties. Since there were two vehicles concerned, the defences taken
by the insured party against the claim were distinct for each vehicle.
As regards the milk tanker, the insurer said there was a breach of the
terms and conditions of the insurance policy: a goods vehicle was
illicitly being used for carriage of passengers. This was, the insurer
contended, a breach of the terms and conditions of the insurance
policy sufficient to justify absolving the insurer from all liability on
account of, or in respect of, the coverage of the milk tanker.
8. As regards the gas tanker, the insurer first said there was no
negligence at all. In the alternative, the insurer pleaded that there
was composite negligence on the part of both vehicles, which could
be apportioned, but since this was negligence on the part of the
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drivers of the vehicles, at best the owners of the vehicles could be
held liable but not the insurer.
9. The MACT framed and answered three issues thus:
Sr No ISSUES FINDINGS
1) Whether the Applicants prove that the
vehicular accident occurred on 05/06/1997
at about 3.55 a.m., on Mumbai-Pune road, in
which the deceased Prakash A. Pawar lost
Yes
his life, had taken place because of rash and
/or negligent driving of tanker bearing No.
MH-09-Q-5546 belongs to the Opp. Party
No. 1?
2) Whether the monthly income of the
Yes
deceased was Rs.5708/-?
3) Whether the insurer of the motor tanker
bearing No. MH-09-Q-5546 proves that the
vehicular accident had taken place because No
of composite negligence of the driver of two
vehicles involved in vehicular accident?
4) Whether the Applicants are entitled to the Yes,
Rs. 11,75,870/- from
compensation, if yes, what amount and from the Opp. Party. The
whom? claim against
insurer of
M/Tanker, Opp.
Party No. 2 and
insurer of Gas
Tanker stands
dismissed.
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10. Thus, the insurer was wholly exonerated and absolved of all
liability, and liability was fastened only on the owner of the milk
tanker. The only parties in the contest before the MACT were
Applicants and the insurer. Only the 1st Applicant, Pawar's widow,
examined herself. There was no other evidence.
11. In paragraph 12 of the judgement under appeal, the Trial
Court specifically found that the Applicants first pleaded rash and
negligent driving by the driver of the milk tanker but later
propounded a case of composite negligence of both drivers. The
Applicant No.1 examined herself. She was admittedly not an eye
witness. In my view, the Tribunal correctly held that her claiming
that there was composite negligence can hardly be termed as
evidence. It is at best hearsay. She had no personal knowledge of the
events or the accident itself.
12. Paragraph 14 of the impugned order is actually pivotal to this
appeal. This is how it is reads:
"14. The Applicants have not adduced the ocular
evidence, therefore, the question as to whose rash and
negligent driving of the vehicle, resulted into the vehicular
accident, has to be decided on the basis of principles of res
ipsa loquitur."
13. It is not controverted that the Applicants did not lead any
evidence, oral or ocular, on the question of negligence or which of
the two vehicle drivers was at fault. The contention was that this
was a case of res ipsa loquitur; since there were two vehicles
involved, there must axiomatically be composite negligence.
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14. The FIR in question which is at Exh.20 of the record, shows
that, at the material time, Pawar and three others were travelling in
the milk tanker. The enquiry with the others indicated that the milk
tanker attempted to pass the gas tanker on its right, and, in doing so,
it hit or clipped in the right rear end of the gas tanker. The Tribunal
held that this clearly suggested rashness and negligence on the part
of the driver of the milk tanker; had it not been so, there would not
have been damage to that portion of the gas tanker.
15. Then come the following observations in paragraph 15 of the
impugned order:
"15. There is no evidence or any material to suggest
even from the copy of FIR which is at Ex.20 that while the
driver of the milk tanker made an attempt to overtake the
Gas tanker, the driver of the Gas tanker swerved the
vehicle/Gas tanker to the right side, as a result, the Gas
tanker dashed against the milk tanker. What is emerging
from the certified copy of FIR is that while the driver of the
milk tanker made an attempt to overtake the Gas tanker,
the milk tanker dashed against the driver's rear portion of
the Gas tanker and then the milk tanker overturned to its
right side.
16. it is difficult to fault the Tribunal's reasoning in this regard. It
is for this reason that the Tribunal came to the conclusions that are
set out in paragraphs 16 and 17 of its judgment:
16. In view of the above discussion, I find that the
vehicular accident in question had taken place because of
rash and negligent driving of the milk tanker in which the
deceased and others were travelling.
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17. There is absolutely no evidence or material to
suggest even remotely that the driver of the Gas tanker in
any manner was responsible for the vehicular accident in
question, as such, I find that case of the Applicants and
alternate defence of the insurer of the milk tanker that the
vehicular accident had occurred because of composite
negligence of the drivers of Milk tanker and Gas tanker,
has not been probabalised or it must fail. In view of the
above discussion, I answer issue No. 1 in affirmative and
issue No. 3 in negative.
17. I find from the record that these conclusions are fully
supported by other material that was before the Tribunal, in
particular the spot panchanama. This document, at Exhibit 24,
clearly indicates that:
(a) both vehicles were on the same side of the road and to
their side of the divider line;
(b) The milk tanker was to the right of the gas tanker.
(c) The right portion of the milk tanker was close to or
touching the highway divider line; and, finally,
(d) That it was the right rear portion of the gas tanker that
was severely damaged (including damage to its bumper
and rear tin sheets.)
This damage and collision could only have happened if the milk
tanker had moved to its right, attempted to pass the gas tanker then
in front of it, and because of negligence or rashness (or both), caused
the accident. It is impossible from this statement of facts and from
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any examination of the material on record to conclude that the
driver of the gas tanker was in any way responsible.
18. In consequence, leaving aside the other issues about income
and so on -- about which there is no dispute -- the Tribunal had
made an award of Rs.11,75,870 but fastened liability only on the
owner of the milk tanker, Opposite Party No. 1 (Respondent No.1 to
this appeal), and held the insurer not to be liable at all.
19. It is against this limited aspect that Mr Mendon for the
Appellants takes exception. It has been Mr Mendon's most
strenuous endeavour to persuade me to accept the following
propositions:
(a) negligence in a motor accident claim under Section 166
of the Motor Vehicles Act, 1988 need never be proved;
(b) That the law on composite negligence is settled to be
such that the claimant does not require to adduce proof
of negligence. The fact that the liability of two persons
said to be compositely negligent is joint and several is
sufficient proof of the negligence of each.
20. In support of these propositions, Mr Mendon cites the
following judgments:
(a) Maharashtra State Road Transport Corporation v Pundlik
Natthuji Adagale & Ors.1
(b) Chhaganlal Nathubhai Patel v Bhagirath Kheraji & Ors.2
1 2014 ACJ 589.
2 1993 ACJ 1152.
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(c) TO Anthony v Karvarnan & Ors.3
(d) Kamlesh & Ors v Attar Singh & Ors.4
(e) Khenyei v New India Assurance Co. Ltd. & Ors.5
21. I am unable to accept either of Mr Mendon's propositions.
Indeed, it seems to me that they must only be stated to be rejected.
None of the authorities contains the propositions that Mr Mendon
canvasses. They could not. Negligence is a tort. Negligence is
always a question of fact. There is a species of negligence where the
nature of the act is such that the fact proves itself. This is not true of
every kind of negligence and in motor vehicle accidents, leaving
aside the statutory fiction introduced in Section 163-A, negligence
must usually be proved. The evidence may be of various types, and
no doubt the court will look at the preponderance of probabilities
and take into account all surrounding factors. There may be
evidence as to the speed of vehicle, or whether it was travelling on
wrong side of the road, in an uneven manner or was attempting
while mobile something especially hazardous. These are all
questions of fact. Negligence cannot be assumed nor can the
necessary factual proof be done away with.
22. Sections 163-A and 166 of the Motor Vehicles Act, 1988 read
thus:
163A. SPECIAL PROVISIONS AS TO PAYMENT OF
COMPENSATION ON STRUCTURED FORMULA BASIS
3 2008 ACJ 1165.
4 2016 ACJ 1.
5 2015 ACJ 1441.
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(1) Notwithstanding anything contained in this Act or in
any other law for the time being in force or instrument
having the force of law, the owner of the motor vehicle of
the authorised insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising
out of the use of motor vehicle, compensation, as indicated
in the Second Schedule, to the legal heirs or the victim, as
the case may be.
Explanation.--For the purposes of this sub-section,
"permanent disability" shall have the same meaning and
extent as in the Workmen's Compensation Act, 1923 (8 of
1923).
(2) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead or establish that
the death or permanent disablement in respect of which
the claim has been made was due to any wrongful act or
neglect or default of the owner of the vehicle or vehicles
concerned or of any other person.
(3) The Central Government may, keeping in view the
cost of living by notification in the Official Gazette, from
time to time amend the Second Schedule.
SECTION 166 -- APPLICATION FOR COMPENSATION
(1) An application for compensation arising out of an
accident of the nature specified in sub-section (1) of
section 165 may be made-
(a) by the person who has sustained the injury;
or
(b) by the owner of the property; or
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(c) where death has resulted from the accident,
by all or any of the legal representatives of the
deceased; or
(d) by any agent duly authorised by the person
injured or all or any of the legal representatives of
the deceased, as the case may be:
Provided that where all the legal representatives of
the deceased have not joined in any such application for
compensation, the application shall be made on behalf of
or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the
application.
(2) Every application under sub-section (1) shall be
made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the
accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides or carries
on business or within the local limits of whose jurisdiction
the defendant resides, and shall be in such form and
contain such particulars as may be prescribed:
Provided that where no claim for compensation
under section 140 is made in such application, the
application shall contain a separate statement to that
effect immediately before the signature of the applicant.
***
(4) The Claims Tribunal shall treat any report of
accidents forwarded to it under sub-section (6) of section
158 as an application for compensation under this Act.
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23. Mr Joshi for the insurer is, I believe, completely correct in
saying that it is not remotely possible to import the provisions of
Section 163-A into the requirements of proof necessary to sustain a
claim under Section 166. Section 163-A creates, by a legal fiction
and a specific statutory provision, a formula for payment of
compensation on a 'structured formula'. The provisions of Section
163-A(2), which obviate the need for proof of negligence, cannot be
imported or engrafted into Section 166.
24. In Deepal Girishbhai Soni & Ors v United India Insurance Co
Ltd,6 the Supreme Court traced the legislative history of Section
163-A and analysed the Motor Vehicles Act, holding it to be a social
welfare legislation. In the context of Section 163-A and Section 166,
the Supreme Court said:
51. The scheme envisaged under Section 163-A, in our
opinion, leaves no manner of doubt that by reason thereof
the rights and obligations of the parties are to be
determined finally. The amount of compensation payable
under the aforementioned provisions is not to be altered or
varied in any other proceedings. It does not contain any
provision providing for set-off against a higher
compensation unlike Section 140. In terms of the said
provision, a distinct and specified class of citizens,
namely, persons whose income per annum is Rs 40,000
or less is covered thereunder whereas Sections 140 and
166 cater to all sections of society.
59. The question may be considered from different
angles. As for example, if in the proceedings under Section
166 of the Act, after obtaining compensation under
6 (2004) 5 SCC 385.
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Section 163-A, the awardee fails to prove that the
accident took place owing to negligence on the part of
the driver or if it is found as of fact that the deceased or
the victim himself was responsible therefor as a
consequence whereto the Tribunal refuses to grant any
compensation; would it be within its jurisdiction to
direct refund either in whole or in part of the amount of
compensation already paid on the basis of structured
formula? Furthermore, if in a case the Tribunal upon
considering the relevant materials comes to the conclusion
that no case has been made out for awarding the
compensation under Section 166 of the Act, would it be at
liberty to award compensation in terms of Section 163-A
thereof?
60. The answer to both the aforementioned
questions must be rendered in the negative. In other
words, the question of adjustment or refund will invariably
arise in the event if it is held that the amount of
compensation paid in the proceedings under Section 163-A
of the Act is interim in nature.
61. It is, therefore, evident that whenever Parliament
intended to provide for adjustment or refund of the
compensation payable on the basis of no-fault liability, as
for example, Sections 140 and 161 in case of hit-and-run
motor accident, from the amount of compensation payable
under the award on the basis of fault liability under Section
166 of the Act, the same has expressly been provided for
and having regard to the fact that no such procedure for
refund or adjustment of compensation has been provided
for in relation to the proceedings under Section 163-A of
the Act, it must be held that the scheme of the
provisions under Sections 163-A and 166 are distinct
and separate in nature.
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(Emphasis added)
25. This brings us back to the first limb of Mr Mendon's
argument, viz., that since the liability of those proved to be
compositely negligent is 'joint and several', therefore there is no
question of 'proving negligence'. As I noted, this proposition is
inaccurate and incorrect. The 'joint and several' aspect speaks to
the extent of liability. It does not by itself prove liability. All that the
decisions cited by Mr Mendon say is that where the negligence of
more than one tortfeasor is established as a composite negligence,
the liability of each is joint and several. Each is liable for the full
extent of the claim, and both are jointly liable for the full extent of
the claim. This cannot be held to mean a dispensation with proof of
negligence. Once negligence is proved, and it is also found that there
is more than one person negligent, i.e., when a question of
composite negligence arises, it is not necessary to ascertain with
mathematical precision the extent of the share of negligence of each.
The reason is obvious. The liability of every tortfeasor in a
composite negligence case is always joint and several and extends to
the full amount of the claim.
26. If this be so, it was for the claimant to first show not only that
the driver of the milk tanker which was attempting the overtaking
manoeuvre was negligent, but that so too was the gas tanker. The
claimants could have done so in different ways, and I do not suggest
that they necessarily needed an eye witness. They might have been
able to summon another witness from nearby or perhaps refer to the
existing material on record such as the spot panchanama or FIR if
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they could, to demonstrate that the record as it stood before the
Tribunal showed some negligence on the part of the gas tanker.
27. Had the claimants done that, the question of composite
negligence might have arisen. But this would not have fulfilled Mr
Mendon's purpose, which is to ensnare Mr Joshi's client, the
insurer, and to make it liable. That would still does not address the
question of why the insurer could be said to be liable when the terms
of its policy were breached and the milk tanker, the driver of whom
was alone found to be negligent, was carrying passengers in violation
of its purpose, which was carriage of goods. A contract of insurance
is a contract of indemnity. Having a motor vehicle insurance cover is
not a license to ply one's vehicle in a haphazard and negligent
manner.
28. In fact Mr Mendon's argument inverts the traditional
sequence in such matters. The sequence is this. The driver is shown
to be at fault. The owner of the vehicle (if he is not the driver) is
vicariously liable for the negligent acts of his employee. The
insurance company bears the monetary compensation awarded
against that vicarious liability. This is a well-established hierarchical
structure in such matters. A finding of fault on the part of the driver
lies at the root of it; without that fault established the insurer's
liability does not come into play at all. In other words, if the driver of
the gas tanker was found not to be at fault, his employer's insurer
could hardly be expected to pay compensation for an accident that
occurred for no fault of its owner.
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29. Of the two vehicles, the milk tanker was being operated in
breach of the terms of its policy by carrying passengers when it was
insured only for carriage of goods. Its insurer was thus not liable.
The gas tanker driver was not at fault, and hence no negligence was
shown, and thus its insurer incurred no liability.
30. Having regard to the foregoing discussion, I am unable to
accept Mr Mendon's submission that the judgment under appeal
should be modified or reversed with a finding of composite
negligence; or that the insurer of the gas tanker should also be held
liable; or that liability should be fastened on the insurer of the milk
tanker.
31. The Appeal fails and is dismissed. No costs.
(G. S. PATEL, J.)
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