Bombay High Court
M/S Cholamandalam Ms General Insurance ... vs Karamsibhai S/O Ratansi Patel And Other on 8 October, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:11806
211.fa.1196.09.jud.doc 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1196 OF 2009
Appellant : M/s. Cholamandalam MS General Insurance
Company Limited, Ahmedabad,
through it's General Manager, Cholamandalam
MS General Insurance Company Limited,
Chennai, through it's Manager,
having its Office at Plot No.17, Prayag Enclave,
Shankar Nagar, Nagpur.
- Versus -
Respondents : (1) Karamsibhai s/o Ratansi Patel,
Aged about 48 Years, Occupation : Farmer.
(2) Jagdish s/o Karamsibhai Patel,
Aged about 25 Years, Occupation : Not known.
(3) Vasudeo s/o Karamsibhai Patel,
Aged about 23 Years, Occupation : Student.
(4) Ghanshyam s/o Karamsibhai Patel,
Aged about 20 Years, Occupation : Student.
All r/o Gujarathi Colony, Ganeshpur,
Tahsil and Dist. Bhandara.
(5) Arjunbhai Sukhlal Bari,
Aged major,
Occupation - Owner of Qualise No.GJ-8F-2182,
R/o 22, Laxminagar Society, Near Railway
Crossing, Palanpur, Gujarat, PIN - 385 001.
(6) Iqbal Hussain Rafiq Husain Pathan,
Aged major, Occupation - Driver,
R/o Baradpura, Salavato Kat Vas Bhakto Ki
Nimboi, Palanpur, Tahsil Palanpur, Dist.
Banaskantha (Gujarath) PIN - 385001.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mrs. Mrunal Naik, Advocate for the Appellant.
None for the Respondents.
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211.fa.1196.09.jud.doc 2/8
CORAM : M.W. CHANDWANI, J.
RESERVED ON : 15th JULY, 2024.
PRONOUNCED ON : 8th OCTOBER, 2024.
JUDGMENT:
Heard the learned Counsel for the appellant.
02. Correctness of the award dated 28/04/2009 passed by the Motor
Accident Claims Tribunal, Bhandara (hereinafter referred to as "Tribunal" for
short) in Claim Petition No.103/2006 is questioned in this appeal, whereby
the Tribunal granted compensation of Rs.6,44,000/- along with interest at the
rate of 8% per annum. The dependents of deceased Gawariben Karamsibhai
Patel, who died in a vehicular accident that occurred on 29/11/2005, had
filed the claim petition for compensation.
03. The brief facts, which are necessary to decide the appeal, can be
summarized as under :
(I) The deceased along with her son and relatives had been to the
marriage of her nephew by Toyota Qualis bearing Registration
No.GJ-8/F-2182 (hereinafter referred to as "vehicle" for short)
which was owned by her relative i.e. respondent No.5. When the
said vehicle reached near Mailani Shivar, the driver of the
vehicle lost control over it and gave a dash to a Truck coming
from the opposite direction, wherein the deceased sustained
severe head injury and died on her way to the hospital.
(II) The vehicle was insured with the appellant. Respondent Nos.1 to
4, the dependents of the deceased, filed the claim petition which
came to be allowed by the impugned award. The appellant and
respondent Nos.5 and 6 i.e. the owner and driver of the vehicle
respectively, were directed to pay the compensation jointly and
severally. Feeling aggrieved with the impugned award, the
present appeal came to be filed by the appellant-Insurance
Company.
04. It is contended that the claim against the appellant is not
maintainable. The learned Counsel appearing on behalf of the appellant
vehemently submitted that the deceased was a gratuitous passenger in the
vehicle and being an occupant of the vehicle, she cannot be treated as a third
party. The vehicle was a private vehicle and it has been used for commercial
purpose and therefore, risk of the occupants of the vehicle is not covered
under the insurance policy. It is further contended that the Tribunal has not
considered this aspect and fastened the liability on the insurer and therefore,
the claim needs to be set aside. It is also contended that the driver of the
vehicle was also disqualified from driving any vehicle and therefore, there is a
breach of policy.
05. Per contra, the learned Counsel appearing on behalf of
respondent Nos.1 to 4 submitted that there is no record to suggest that the
vehicle was hired by the deceased. Rather, the owner of the vehicle was a
relative of the deceased. After attending the marriage, the deceased was
travelling in the vehicle, which was owned by her relative. No evidence has
been brought on record by the appellant to show that the vehicle was hired by
the deceased. According to him, the vehicle is covered by comprehensive
package policy and therefore, there is no question of non-coverage of
occupants of the vehicle. He, therefore, sought rejection of the appeal.
06. Perusal of the evidence of respondent Nos.1 and 2, the husband
and son of the deceased respectively, reveals that the deceased was travelling
in the vehicle along with respondent No.3, which was owned by respondent
No.5, who is the relative of the deceased. Nothing has been brought on record
by way of cross-examination to suggest that the vehicle was hired by the
deceased. The Tribunal has, therefore, rightly considered that the deceased
was travelling in the vehicle of her relative i.e. respondent No.5 and hence, it
cannot be said that the said vehicle was being used for commercial purpose
at the relevant time.
07. So far as the submission of the learned Counsel for the appellant
that the occupant is not a third party and therefore, the deceased, being an
occupant, is not covered under the insurance policy is concerned, no doubt,
the occupant of the vehicle is not a third party to the insurer of the said
vehicle, but fact remains that in the present case, the vehicle was covered
under a package policy and even the passengers of the vehicle in the event of
an accident were covered by paying additional premium. In view of the above,
I do not find any substance in the argument of the learned Counsel for the
appellant that the occupants of the vehicle were not covered by the insurance
policy.
08. Turning to the submission that the driver of the vehicle was
disqualified from driving any vehicle, nothing has been brought on record in
this regard. Rather, the appellant has not examined anybody, nor brought on
record any document showing that the driver was disqualified from driving
the vehicle. Therefore, there is no force in this point as well.
09. The sheet-anchor argument of the learned Counsel for the
appellant is that in the accident, two vehicles were involved, however, the
insurer of the other vehicle, i.e. the Truck, was not joined as a party to the
claim petition. Rather, according to her, there was contributory negligence on
the part of the said Truck, however, the said fact has not been considered by
the Tribunal and erroneously fastened the entire liability on the appellant.
10. I do not find force in the argument of the learned Counsel for the
appellant for the reason that when there are two vehicles involved in an
accident, the drivers and owners of both the vehicles are jointly and severally
liable to the injured/claimant and it is the choice of the claimant to claim
compensation against any of them. A reference can be made to the decision
of the Supreme Court in the case of T.O. Anthony vs. Karvarnan and others -
(2008) 3 SCC 748, wherein it has been held in paragraphs 5 to 7 as under :
5. The Tribunal assumed that the extent of negligence of the
appellant and the first respondent is fifty:fifty because it was a
case of composite negligence. The Tribunal, we find, fell into
a common error committed by several Tribunals, in
proceeding on the assumption that composite negligence and
contributory negligence are the same. In an accident involving
two or more vehicles, where a third party (other than the
drivers and/or owners of the vehicles involved) claims
damages for loss or injuries, it is said that compensation is
payable in respect of the composite negligence of the drivers
of those vehicles. But in respect of such an accident, if the
claim is by one of the drivers himself for personal injuries, or
by the legal heirs of one of the drivers for loss on account of
his death, or by the owner of one of the vehicles in respect of
damages to his vehicle, then the issue that arises is not about
the composite negligence of all the drivers, but about the
contributory negligence of the driver concerned.
6. 'Composite negligence' refers to the negligence on the part
of two or more persons. Where a person is injured as a result
of negligence on the part of two or more wrong doers, it is
said that the person was injured on account of the composite
negligence of those wrong-doers. In such a case, each wrong
doer, 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
wrong-doer separately, nor is it necessary for the court to
determine the extent of liability of each wrong-doer
separately. On the other hand where a person suffers injury,
partly due to the negligence on the part of another person or
persons, and partly as a result of his own negligence, then the
negligence of 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
stands reduced in proportion to his contributory negligence.
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 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."
11. Put altogether, there is no merit in the appeal. Hence, the appeal
fails and accordingly, it is dismissed. There shall be no order as to costs.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 19/10/2024 17:23:29
