Bombay High Court
The Cholamandalam Gen. Insu. Co. Ltd. ... vs Punita Wd/O Rakesh Verma And Others on 18 September, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:10998
J FA-343-2022.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.343 OF 2022
APPELLANT : The Cholamandalam Gen. Insu. Co.
(Ori. Res. No.2) Ltd.
On R. A.
Through Branch Manager, Plot No.17,
Prayag Enclave, 1st floor near Sanman
Lawn Bajaj Nagar Nagpur.
..VERSUS..
RESPONDENTS : 1 Santhanam s/o Govindarasu,
Ori. Pet. No.1 to 3)
On R.A.
Aged 55 Yrs, Occu. Labour
2 Backiyan w/o Santhanam,
R/o. 42, Occu- Nil
3 Prema Santhanam,
Aged - 37 yrs, Occu- Nil
All R/o. 42, South ST, Kodavasal, Tq.
Paruthiyur, Thiruvarur, Paruthiyur,
Tamil Nadu.
(Ori. Res. No.1) 4 J. K. Transport Corporation,
On R.A.
R/o. Bhandara Road, Kapsi, District
Nagpur.
5 Muthulakshmi Kumar,
Aged about 34 yrs, Occu- Nil, R/o.
83C, Natarajan West Street, Tq.
Mannargudi, Thiruvarur, Tamil Nadu.
WITH
FIRST APPEAL NO.345 OF 2022
APPELLANT The Cholamandalam Gen. Insu. Co.
(Ori. Res. No.2)
On R.A.
Ltd.
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2
Through Branch Manager, Plot No.17,
Prayag Enclave, 1st floor near Sanman
Lawn Bajaj Nagar, Nagpur.
..VERSUS..
RESPONDENTS 1 Punita Wd/o Rakesh Verma,
(Ori. Pet. No.1 to 3)
On R.A.
Aged 39 Yrs., Occu. Household
2 Aman Rakesh Verma,
Aged-18 yrs, Occu- Student
3 Ashtha D/o Rakesh Verma,
Aged-17 yrs, Occu- Student
Respt no 3 being minor,
Through Natural guardian Mother.
Rept no 1. R/o. Gram Amepur, P.O.
Bansgaon, Tah-Buranpur, Dist-
Azamgad (U.P).
(Ori Res No 1) 4 J. K. Transport Corporation,
On R.A.
Amendment as per order
R/o 214, Transport nagar, Bhandara
dt.10.11.2022. road, Wardhaman nagar, Nagpur
WITH
FIRST APPEAL NO.342 OF 2022
APPELLANT The Divisional Manager,
(Ori. Res. No.2)
On R.A.
The Cholamandalam MS General
Insurance Co. Ltd. Plot No.17, Prayag
Enclave, 1st floor near Sanman Lawn
Shankar Nagar, Nagpur.
..VERSUS..
RESPONDENTS 1 Smt. Asha Wd/o Vitthalrao Bhondave,
(Ori. Pet. No.1)
On R.A.
Aged 68 Yrs, Occu- Household, R/o.
Malegaon Theka, Tah- Arvi, Dist-
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3
Wardha.
(Ori Res No 1) 2 J. K. Transport Corporation,
On R.A.
Aged-major, Occu-Not known, Plot no
214, Transport Nagar, Bhandara Road,
Kapsi, Dist - Nagpur
WITH
FIRST APPEAL NO.344 OF 2022
APPELLANT The Cholamandalam General
(Ori. Res. No.2)
On R.A.
Insurance Co.,
Through Branch Manager, Plot No.17,
Prayag Enclave, 1st floor near Sanman
Lawn Bajaj Nagar, Nagpur.
..VERSUS..
RESPONDENTS 1 Anjali Wd/o Anil Bargat,
(Ori. Pet. No.1 to 3)
On R.A.
Aged 46 Yrs, Occu. Household
2 Nikita D/o Anil Bargat,
Aged - 20 yrs, Occu- Student
3 Atharva S/o Anil Bargat,
Aged - 15 yrs, Occu- Student
Respt no 3 being minor, Through
Natural guardian Mother. Respt. no.1.
R/o. Flat no 203, Nilgagan Apartment
Ingole Nagar, Hudkeshwar Road,
Nagpur.
(Ori. Res. No.1) 4 J. K. Transport Corporation,
On R.A.
R/o. Bhandara Road, Kapsi, Tah &
District Nagpur.
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First Appeal No.343 of 2022
Ms M. Naik, Advocate for Appellant.
Ms U. A. Bhattad, Advocate for Respondent Nos.1 to 4.
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First Appeal No.345 of 2022
Ms M. Naik, Advocate for Appellant.
Ms U. A. Bhattad, Advocate for Respondent Nos.1 to 3.
First Appeal No.342 of 2022
Ms M. Naik, Advocate for Appellant.
Ms K. Raut, Advocate for Respondent No.1.
First Appeal No.344 of 2022
Ms M. Naik, Advocate for Appellant.
Ms U. A. Bhattad, Advocate for Respondent Nos.1 to 3.
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CORAM : M. W. CHANDWANI, J.
DATED : 18th SEPTEMBER, 2024.
ORAL JUDGMENT
1. Heard learned counsels appearing for the respective
parties in all appeals.
2. Admit.
3. These four appeals are arising out of the impugned
awards passed by the Motor Accident Claims Tribunal, Nagpur,
thereby granting compensation on account of death of the
persons who died in the same accident. The issues involved in
these appeals and contentions of the respective parties are one
and the same, therefore, these appeals are disposed of by this
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common judgment.
4. On the unfortunate day i.e. on 28.04.2016, deceased
Shubham Vitthalrao Bhondave, a driver of Maruti Van having
registration No.MH-31-CS-4150, was carrying the employees
of Shilpa Steel and Power Ltd., MIDC, Butibori in his vehicle
towards MIDC Area, Butibori. When the said Maruti Van
reached near MIDC Industrial Area, Butibori, District Nagpur,
one truck/trailer having registration No.CG-04-G-6444
(hereinafter referred to as "the offending truck") was parked on
the road without putting any indicator or signal. Therefore, the
driver of the Maruti Van could not see the offending truck in
the dark at night and gave a dash to the offending truck from
the back side. In the said accident, two of the employees died
on the spot, whereas one other employee and the driver of the
Maruti Van got seriously injured. Thereafter, the said employee
and the driver of the Maruti Van succumbed to the injuries
during treatment. Thus, three employees of Shilpa Steel and
Power Ltd., MIDC, Butibori including the driver of the Maruti
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Van died in the said accident. The dependents of these four
deceased persons filed independent claim petitions before the
Tribunal against the offending truck. The Tribunal by different
awards granted compensation on account of death of the
earning members of their family directing the appellant insurer
of the offending truck to pay compensation to the claimants.
These four different awards have been challenged in these
appeals by the Insurance Company.
5. The main contention raised by learned counsel
appearing for the appellant is that the Tribunal has wrongly
held that the driver of the offending truck was negligent.
According to her, a dash was given by the driver of the Maruti
Van to the offending truck from the back side. This itself goes
to show that the deceased, driver of the Maruti Van, was at
fault. According to her, just because the offence is registered
against the driver of the offending truck, the Tribunal fastened
the entire liability on the truck owner and on the appellant.
The second point which has been raised in these appeals is that
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two vehicles were involved in the accident, however, the owner
of the Maruti Van has not been made a party to any of the
claim petitions. According to the learned counsel for the
appellant, the Tribunal ought to have at least considered
contributory negligence of the owner of the Maruti Van and
could have directed the owner of the Maruti Van to contribute
in the compensation, but the Tribunal ignored this factual
aspect and wrongly directed the appellant insurer to pay the
entire compensation to the dependents of the deceased persons,
who died in the fatal accident.
6. The contention of the learned counsel for the
appellant is opposed by the respective counsels appearing for
the claimants. According to them, the case is not of
contributory negligence, but of composite negligence. They
submit that the appellant did not bother to bring any witness to
show that the accident occurred due to negligence of the driver
of the Maruti Van. Therefore, they submit that the appeals are
devoid of merit. Hence, they sought rejection of the appeals.
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7. Having heard the respective counsels appearing for
the parties, I have gone through the record. Perusal of the
police papers goes to show that the driver of the offending
truck has been prosecuted for the offences punishable under
Sections 304-A, 279 and 335 of the Indian Penal Code, 1860
and under the provisions of the Motor Vehicles Act, 1988. First
Information Report reveals that the offending truck was parked
on the road without there being any reflector. It is a matter of
record that the accident occurred on 28.04.2016 at about 11:30
in the night on the highway, therefore, it was the responsibility
of the truck driver to keep the indicator/reflector of the truck
on before halting it on the road, but that was not done.
8. I do not find any substance in the argument of the
learned counsel for the appellant that the road was a four lane
road, therefore, there is ample space for the driver of the Maruti
Van to drive the said Van from the side of the lane of the
offending truck. Perusal of the papers goes to show that the
accident occurred just because the driver of the Maruti Van
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could not notice the offending truck that was halting on the
road because no indicator of the truck was on. Had the driver
of the Maruti Van noticed the offending truck, he would have
changed his lane. Thus, I do not find any error in the impugned
awards of the Tribunal holding the driver of the offending
truck negligent.
9. Turning to the submission of composite and
contributory negligence as alleged by the counsel for the
appellant, as I have already concurred with the findings of the
Tribunal that the accident occurred just because of the
negligence of the truck driver, therefore, there is no question of
going into the aspect of contributory or composite negligence.
10. Be that as it may, the law is settled in this regard that
in case of composite negligence, the claimants of the deceased
particularly, who were occupant of Maruti Van (except driver),
have a choice to recover the compensation from either the
owner or the insurer of the vehicle, since they are jointly and
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severally liable to pay the compensation to the claimant. A
reference can be made to the case of Khenyei vs New India
Assurance Co. Ltd. and others, 2015 A.C. 66 (SC) (FB),
wherein the Hon'ble Supreme Court in para 18 of the decision
has held as under :
"18. ....... What emerges from the aforesaid discussion is
as follows:
(i) In the case of composite negligence, plaintiff/claimant
is entitled to sue both or any one of the joint tort-feasors
and to recover the entire compensation as liability of joint
tort-feasors is joint and several.
(ii) In the case of composite negligence, apportionment of
compensation between two tort-feasors vis-a-vis the
plaintiff/claimant is not permissible. He can recover at his
option whole damages from any of them.
(iii) In case all the joint tort-feasors have been impleaded
and evidence is sufficient, it is open to the Court/Tribunal
to determine inter se extent of composite negligence of the
drivers. However, determination of the extent of
negligence between the joint tort-feasors is only for the
purpose of their inter se liability so that one may recover
the sum from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied the
liability of the other. In case both of them have been
impleaded and the apportionment/extent of their
negligence has been determined by the Court/Tribunal, in
main case one joint tort-feasor can recover the amount
from the other in the execution proceedings.
(iv) It would not be appropriate for the Court/Tribunal to
determine the extent of composite negligence of the
drivers of two vehicles in the absence of impleadment of
other joint tort-feasors. In such a case, impleaded joint
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tort-feasor should be left, in case he so desires, to sue the
other joint tort-feasor in independent proceedings after
passing of the decree or award."
Subsequently, also the Hon'ble Supreme Court, in
para 6 of T. O. Anthony vs. Karvarnan and others, (2008) 3
SCC 748, has held as under :
"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
wrongdoers, it is said that the person was injured on
account of the 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 the 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."
11. The principle of composite negligence laid down in
the case of Khenyei (supra) and T. O. Anthony (supra), will not
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be applicable to the case of the deceased driver, since he was
driving the Maruti Van. However, in view of the fact that it was
the driver of the offending truck, who was negligent, there is no
question of contributory negligence on the part of the deceased
driver of the Maruti Van. There is no force in this point. The
appeals are devoid of merits. Hence, the appeals are dismissed.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
TAMBE
Designation: PA To Honourable Judge
Date: 03/10/2024 17:21:27
