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IN THE HIGH COURT OF ANDHRA PRADESH
U. Durga Prasad Rao, J. Umadevi, JJ.
The Oriental Insurance Company Ltd., Guntur - Petitioner
Versus
Smt. Mandru Madhavi Amp, Ors. – Respondents
M.A.C.M.A. No. 58 of 2010
Decided On : 30-04-2021
Claim of compensation – Motor accident claim - Composite negligence of drivers of both vehicles in accident - Whether lorry was simply parked or moving at a slow speed so as to adjust speed of their vehicles to avoid hitting - Whether apportionment of inter se liability between drivers of two vehicles is required to be made - Whether finding of lower Tribunal regarding composite negligence of drivers of both vehicles is sustainable - Whether Court is required to pronounce extent of their inter se liability is question which court are engaged in this appeal - Deceased while travelling in a car along with others from Hyderabad died on way when car hit rear portion of a lorry stationed across road without switching on parking lamps and indicators - Claimants who are wife minor sons and parents of deceased on file of Chairman MACT – cum-District Judge against respondents 1 and 2 who are owner and insurer of offending lorry and respondents 3 and 4 who are owner and insurer of offending car and claimed as compensation under several heads - While respondents 1 and 3 who are owners of respective vehicles remained ex parte respondents 2 and 4 insurance companies contested O.P - Contention of 2nd respondent inter alia is that lorry driver stopped his vehicle on road margin due to break down but not across road on middle point - It was car driver who drove vehicle at high speed and dashed behind lorry and therefore owner and insurer of lorry are not answerable to claim –
Finding of the Court: Court gave our anxious consideration to facts evidence and law - It must be noted that appellant in this case is insurer of one of two vehicles involved the accident lorry - Appellant has not disputed with most of observations and findings of Tribunal regarding manner of occurrence of accident - Having accepted most of observations and findings however learned counsel for appellant would mainly contend that observation that car driver in spite of having opportunity to see parked lorry and regulate his speed but did not do so and hit lorry itself is indicative that entire fault in accident rests with car driver - Court are unable to countenance this argument - It is true that Tribunal made observations only in process of exposing part of negligence on part of car driver - That does not mean that entire fault lies with him - Even assuming that lorry driver parked lorry by side of road still he did not put on blinkers and place stone fencing around stationed lorry indicating that vehicle was broke down in night time on high-way road - Tribunal was right in holding that accident was occurred due to composite negligence of both drivers - It would not be appropriate for court/tribunal to determine extent of composite negligence of drives of two vehicles in absence of impalement of other joint tort favors - In such a case imp leaded joint tort should be left in case he so desires to sue other joint tort feasor in independent proceedings after passing of decree or award - Guideline Number is germane for us - Since in instant case both tort feasors are impleaded apportionment of inter se extent of composite negligence of drivers is essential - Having regard to facts and evidence court hold that major part of fault rests with lorry driver as primary burden lies on him to put on parking lights and place stones and other indicators around lorry as his vehicle was broke down in night time that too on high-way road - Though drivers of ongoing vehicles can able to see parked vehicle from a distance through focus of lights of their respective vehicles however in absence of indicator lamps and parking stones it would be difficult for them to understand whether lorry was simply parked or moving at a slow speed so as to adjust speed of their vehicles to avoid hitting - So considering these facts and circumstances court fix liability of the lorry driver and the car driver - This fixation is only an inter se liability and will not affect right of claimants to recover compensation from tort feasors jointly and severally - Appellant insurance company shall pay entire compensation amount to claimants and recover of same from owner of car and his insurer - Liability of insurer is only to extent –
Result: Appeal is partly allowed
JUDGMENT :
U. Durga Prasad Rao, J.
While deciding the liability of joint tort feasors and awarding compensation against the claim of a third party, whether the Court is required to pronounce the extent of their inter se liability is the question which we are engaged in this appeal.
2. The matrix of the case is thus:
(b) While respondents 1 and 3 who are the owners of respective vehicles remained ex parte, respondents 2 and 4, the insurance companies, contested the O.P.
(c) The contention of the 2nd respondent inter alia is that the lorry driver stopped his vehicle on the road margin due to break down but not across the road on the middle point. It was the car driver who drove the vehicle at high speed and dashed behind the lorry and therefore, the owner and insurer of the lorry are not answerable to the claim.
(d) The 4th respondent contended that the lorry driver was solely responsible for the accident for having stationed the lorry on the middle of the road without putting on parking lights and placing indicators. The police filed charge sheet against the lorry driver and as such respondents 1 and 2 alone are liable.
(e) Be that it may, while fixing the liability in the accident, the lower Tribunal did not give much importance to Ex.A.3-scene observation report and Ex.A.4-rough sketch which depict that the lorry due to break down was parked on the middle of the road in east-west direction without putting the parking lights on. The Tribunal observed that it was improbable for the lorry driver to park the vehicle across the road leaving no space for other vehicles to pass through as generally one would park the vehicle by the side of the road that too it being a high-way. The Tribunal thus came to conclusion that due to the hitting by the car from the backside, the lorry must have changed its position and direction. It further observed that since the lorry was stationed by the side of the road, it would be visible to the driver of the scorpio car from a distance through the headlights of the car and thereby he had an opportunity to see the lorry parked on the road side from a distance and accordingly could have regulated the speed of his vehicle. He did not do so and hit back the lorry which speaks volumes about the negligence of the car driver. Then, coming to the lorry driver, the Tribunal held that he ought to have kept blinkers of the lorry on since it was broke down on a high-way and should have also arranged stone fencing around the lorry but he did not do so and negligently left the lorry and so he also contributed to the accident. With these observations, the lower Tribunal held that there was a composite negligence of the drivers of both vehicles in the accident.
(f) Then, basing on the evidence on record, the lower Tribunal awarded a compensation of Rs.28,81,000/-. The apportionment of liability is concerned, the Tribunal held that respondents 1 and 2 who are the owner and insurer of the lorry and respondent No.3 who is the owner of the scorpio car are liable to pay the compensation. Respondent No.4 who is the insurer of the car is concerned, having regard to the terms of the policy, the Tribunal restricted its liability to Rs.1,00,000/-only.
In the above process, the lower Tribunal did not apportion the percentage of fault in the
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