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SUPREME COURT OF INDIA
K G Balakrishnan, CJI., R V Raveendran, J.
T. O. Anthony - PETITIONER:
Karvarnan and Others - RESPONDENT:
Appeal (civil) 1082 of 2008
DATE OF JUDGMENT: 01/02/2008
Motor Vehicle Act – Negligence – Claim petition – Appellant was a driver working with the Kerala State Road Transport Corporation. – On the date of the accident, he was driving the KSRTC bus (KL 15/1074) from Palakkad to Trichur. – When his bus was near Kannanoor a private bus (KL 9A-3456) driven by the first respondent (belonging to second respondent, and insured with third respondent) came from the opposite side and there was a head-on collusion. – As a result the appellant sustained injuries including fracture of right femur. – He filed a petition before the Motor Accident Claims Tribunal, Palakkad claiming Rs.2,50,000/- as compensation. By judgment and award the Motor Accident Claims Tribunal allowed the claim petition in part. – Tribunal held that the accident occurred due to the composite negligence of drivers of both vehicles and it could not be said that the accident occurred solely due to the negligence of the first respondent. – Tribunal further held that as the accident occurred due to contributory and composite negligence of the drivers of both the vehicles, the liability should be fifty- fifty (that is 50% each). – Tribunal determined the compensation as Rs.78,500/-. – In view of its decision that the appellant was responsible for the accident, to an extent of 50%, it deducted 50% therefrom for appellants negligence, and awarded Rs.39,250/- to the appellant with interest at the rate of 12% per annum from date of petition till date of realization, and directed the third respondent (Insurer) to pay the said amount. – Held, Appellant contended that compensation has not been awarded to compensate the leave he took for purposes of treatment. – Court find that both the Tribunal and the High Court have awarded compensation under the head of loss of earnings during the period of treatment. – In so far as loss of earning during the period of any future treatment (after the date of claim petition), it will be covered by the award under the head of compensation for disability and future earning capacity. – Therefore court do not find any reason to increase the quantum on that head. – As court have found that the extent of contributory negligence on the part of the appellant is only 25% and not 50%, the compensation has to be reduced only by 25% and not 50%. – Therefore, the compensation awardable to the appellant will be Rs.1,18,725 (that is Rs.1,58,300 less 25% thereof). – As the Tribunal has awarded Rs.39,250 and the High Court has awarded another Rs.39,900, the appellant will be entitled to the balance of Rs.39,575 as additional compensation. – Appeal Partly Allowed
The primary dispute centered on the Tribunal's (and High Court's upheld) characterization of the accident as involving "composite negligence" between the two drivers, leading to an automatic 50:50 apportionment of liability, which the Supreme Court rejected as erroneous.
The appellant (KSRTC bus driver) claimed he was driving at moderate speed on the correct side of the road (east to west), while the private bus driver rashly crossed to the wrong side, causing the head-on collision, making the respondent solely negligent with no deduction from compensation. (!) (!)
The Tribunal held it was composite negligence of both drivers (not solely the respondent's fault), assuming equal 50% responsibility each without separately assessing degrees, deducting 50% from the compensation award. (!) (!) (!)
The Supreme Court clarified that "composite negligence" applies to third-party claims against multiple wrongdoers (joint/several liability, no need to apportion), but here—where one driver claims against the other—it was a case of "contributory negligence" requiring assessment of the claimant's (appellant's) partial fault. The Tribunal erred by equating the two and presuming 50:50 without evidence-based apportionment. (!) (!) (!)
On facts, the accident spot (2.26m from southern edge, 4.79m from northern edge of tarred road) indicated the appellant was on his correct side but partly at fault for not slowing down or swerving upon seeing the oncoming private bus partly on the wrong side. The Court apportioned 25% contributory negligence to the appellant and 75% to the respondent. (!)
O R D E R
K.G.BALAKRISHNAN, CJI.
Leave granted. Heard learned counsel for the parties.
2. The appellant was a driver working with the Kerala State Road Transport Corporation. On the date of the accident, he was driving the KSRTC bus (KL 15/1074) from Palakkad to Trichur. When his bus was near Kannanoor a private bus (KL 9A-3456) driven by the first respondent (belonging to second respondent, and insured with third respondent) came from the opposite side and there was a head-on collusion. As a result the appellant sustained injuries including fracture of right femur. He filed a petition before the Motor Accident Claims Tribunal, Palakkad claiming Rs.2,50,000/- as compensation. By judgment and award dated 13.5.1998 the Motor Accident Claims Tribunal allowed the claim petition in part. The Tribunal held that the accident occurred due to the composite negligence of drivers of both vehicles and it could not be said that the accident occurred solely due to the negligence of the first respondent. The Tribunal further held that as the accident occurred due to contributory and composite negligence of the drivers of both the vehicles, the liability should be fifty- fifty (that is 50% each). The tribunal determined the compensation as Rs.78,500/-. In view of its decision that the appellant was responsible for the accident, to an extent of 50%, it deducted 50% therefrom for appellant's negligence, and awarded Rs.39,250/- to the appellant with interest at the rate of 12% per annum from date of petition till date of realization, and directed the third respondent (Insurer) to pay the said amount.
3. Aggrieved by the said award, the appellant filed an appeal before the High Court. The High Court by judgment dated 3.3.2005 allowed the appeal in part. The High Court did not disturb the finding regarding negligence. It however increased the compensation and directed payment of an additional compensation of Rs.39,900/- to the appellant with interest at 9% P.A. from date of petition till date of payment. Not being satisfied with the judgment of the High Court, the appellant has filed this appeal by way of Special Leave.
4. The appellant contended that at the time of the accident, he was driving his bus at a moderate speed in a careful manner and his bus was traveling from East to West on the correct side of the road. According to him the private bus, being driven by the first respondent in a rash and negligent manner, came from the opposite side, went to the wrong side of the road and dashed against his bus. He contended that The Tribunal and High Court ought to have held that the first respondent was solely responsible for the accident, and consequently, awarded the compensation without any deduction.
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 negli
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