The National Insurance Co. Ltd., ... vs Jagannath Vasant Borkar
2017 Latest Caselaw 2960 Bom

 fa765.10.J.odt                                 1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH, NAGPUR


                      FIRST APPEAL NO.765 OF 2010


          The National Insurance Co. Ltd.,
          Nagpur through its Regional
          Manager, "Mangalam Arcade",
          Dharampeth Extn., Dharampeth,
          Nagpur.                     ....... APPELLANT


                                ...V E R S U S...


 1]       Jagannath s/o Vasant Borikar
          Aged about 50 years,
          Occ: Service.

 2]       Chabi w/o Jagannath Borikar
          Aged about 39 years,
          Occ: Household.

          Both R/o Kanta Palace, 
          Kotwal Nagar, Behind Post Office,
          Nagpur.

 3]       Ankush Shikshan Sanstha,
          R/o CRPF Gate No.3, Dighori,
          Hingna Road, Nagpur.       ....... RESPONDENTS

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         Shri V.P. Maldhure, Advocate for Appellant.
         Ms. M.H. Pathade, Advocate for Respondent No.1.
 -------------------------------------------------------------------------------------




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  fa765.10.J.odt                           2


          CORAM:  SMT. DR. SHALINI PHANSALKAR-JOSHI, J.

th DATE: 8 JUNE, 2017.

ORAL JUDGMENT

1] This appeal takes an exception to the judgment

and award dated 03.05.2010 passed by Motor Accident

Claims Tribunal, Nagpur in M.A.C.P. No.980/2006.

The appellant is insurance company and along with the

owner of the vehicle is held jointly and severally liable to pay

the amount of Rs.2,75,000/- inclusive of no fault liability as

compensation to respondent No.1 and 2 with interest at the

rate of 7.5% per annum from the date of petition till

realization of the amount.

2] Briefly stated, facts of the appeal are as under:

Deceased Sanchit, aged 17 years was the son of

respondent Nos.1 and 2. On the date of incident on

30.08.2006 he was driving motorcycle bearing MH-27 J-8700

and proceeding from his college towards home along with his

friend sitting as pillion rider. When the motorcycle came in

front of Coco Cola Factory, M.I.D.C. Wadi, Nagpur the bus

bearing No.MH-40 4385 came from opposite direction in high

speed and gave dash to the motorcycle of the deceased. As a

result, deceased sustained injuries and succumbed to the

head injury. Respondent Nos.1 and 2, who are the parents of

the deceased therefore, were constrained to file the petition

for compensation. According to them, deceased was a student

of Polytechnic 1st year and he would have become Class-I

Officer and earned income of Rs.10,000/- per month.

However, due to his untimely death the petitioners had

suffered psychological and monetary loss. The luxury bus

which gave dash to the deceased being owned by respondent

N.3 and the appellant being insurance company of the said

luxury bus, respondent Nos.1 and 2 claimed compensation of

Rs.7 lakh from them jointly and severally.

3] This petition was resisted by the present appellant

vide written statement at Exh.14, contending inter alia that

the deceased was not holding driving licence and the accident

has occurred due to his negligence; therefore, the insurance

company cannot be held liable to pay any amount of

compensation.

4] In support of their petition respondent No.1 led

oral evidence and on appreciation of the said evidence, the

learned Tribunal allowed the claim partly to the tune of

Rs.2,75,000/-, along with interest and proportionate costs

thereon.

5] The only ground on which the judgment and

award of Tribunal is challenged in this appeal is that, it was a

case of contributory negligence, as deceased was not holding

valid licence for driving the motorcycle. It is submitted by

learned counsel for appellant that the respondent No.1

himself has admitted that deceased was aged 17 years and he

was not having valid licence for driving motorcycle.

According to learned counsel for the appellant, the deceased

was also chit chatting with the pillion rider. Hence, some

negligence needs to be attributed to the deceased for the

accident, which has occurred resulting into his death.

6] As this is the only ground on which the impugned

judgment and award is challenged, it is necessary to see what

is the legal position. In this respect, learned counsel for the

respondent, has relied upon the authority of Sudhir Kumar

Rana v. Surinder Singh and others reported in 2008 ACJ 1834.

In the facts of that case also, there was collusion between

mini-truck and two-wheeler motorcycle. It was proved that

the minor, who was driving the motorcycle, was not holding

valid driving licence. The question raised before the Apex

Court was, whether the scooterist can be held responsible for

contributory negligence and it was observed as follows:

6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent.

7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply".

Reliance was placed on para 6 of the judgment in

T.O. Anthony v. Karvarnan reported in 2008 ACJ 1165 as

under:

"Composite negligence" refers to the negligence on the part of the 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 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 hand, where a person suffers injury, partly due to 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".

Thus it was held that:

"(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 as to 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."

It was further held that, "if a person drives a vehicle

without the licence he commits an offence. The same by itself

may not lead to a finding of negligence as regards accident. It

is one thing to say that the deceased was not possessing any

licence, but no finding of fact has been arrived that at that

time he was driving two wheeler rashly and negligently. If he

was not driving rashly and negligently, which contributes to

the accident we fail to see as to how, only because he was not

having a licence he would be held guilty of contributory

negligence."

7] In the instant case also, the evidence on record

clearly shows that the first information report was filed

against the luxury bus driver. Thus, in the police investigation

also the cause of accident was attributed to the bus driver.

No other evidence is produced on record by the

appellant-insurance company by examining the driver of the

luxury bus or any other eye witness to the incident, to show

that the deceased was driving the scooter in a rash and

negligent manner. In the absence of such evidence, merely

because deceased was not having a valid licence, the case of

contributory negligence cannot be attributed to him,

considering the legal position as laid by the Apex Court in the

above said authority.

8] Even as regards the contention that deceased was

driving his motorcycle while chit chatting with the pillion

rider, except for the allegation to that effect in the written

statement, no other evidence is adduced by the appellant to

support or prove the alleged act of chit chatting.

Hence, it cannot be said that the Tribunal has committed any

error, in the casting liability for the accident on the

respondent No.3, and directing insurance company of paying

the compensation to the claimant.

9] Another argument advanced by learned counsel

for appellant is that multiplier applied by the Tribunal is not

proper. According to him, the correct multiplier would be 11,

whereas the Tribunal has applied the multiplier of 13.

According to learned counsel for respondent No.1 however

having regard to the age of the deceased and the age of the

claimants the proper multiplier would be 18 in view of the

judgment of the Apex Court in Sarla Verma and others v.

Delhi Transport Corporation and another reported in 2009

ACJ 1298.

10] Having regard to the fact that deceased was of the

age of 17 years, whereas his parents were of the age of 50

years at the time of filing the claim petition, in my considered

opinion, no interference is warranted in the impugned order

on this count also as multiplier of 11 cannot be said to be

incorrect having regard to the age of the parents and the

deceased being unmarried.

11] As no other issue or question is raised by the

Court apart from the ones discussed above, the appeal needs

to be dismissed and accordingly stands disposed of.

The respondent Nos.1 and 2 are permitted to withdraw

the balance of compensation which is deposited in this Court

after appeal period is over.

JUDGE

NSN