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2009(1) GCD 207(Guj)
Hon’ble Mr. Justice D.H. Waghela
New India Assurance Co. Ltd. & Others
Versus
Josnaben @ Jashuben Vallabhbhai & Others
First Appeal No. 2854 of 20051—Decided on 27/03/2008
Motor Vehicles Act, 1988 — Sections 166, 168 and 173 — Motor Accident — Compensation — Composite negligence — Apportionment — Challenge as irrational and arbitrary — Sustainability — Finding of — Where more than one party is held responsible for paying compensation in a motor accident claim, it is necessary that the Tribunal specifies the amount required to be paid by each party — However, in case of composite negligence both the wrong doers are held jointly and severally liable for loss — In case of determination of apportionment of liability same would be tentative and it shall not affect the right of the plaintiff-claimant to recover full damages from the defendant of tort-feaser against whom the first proceeding was filed — In the case in absence of any evidence to determine the extent of liability of each party i.e. Insurance Company, Tribunal concluded and rightly so that it was a case of composite negligence of the drivers of both the vehicles and the Insurance Companies of both vehicles are jointly and severally liable for payment of compensation — Therefore, the appeals filed by Oriental Insurance Company are partly allowed — Even as Oriental Insurance Company has not challenged quantum of compensation but it is challenged by New India Assurance Co. Ltd. — The Court cited the propositions of law and enumerated the considerations A to J in Para No. 10 of judgment for determining the quantum of compensation — Court considered the each appeal with regard amount of compensation awarded by Tribunal and held that though Tribunal had arbitrarily fixed several amounts under several heads but the rough and inarticulate assessment of damages clearly appeared in each case to have recruited into award of less then just and reasonable amount of compensation — Court, therefore, dismissed the group of appeal filed by New India Assurance Co. Ltd. — As such appeals filed by Oriental Insurance Co. Ltd. are partly allowed with direction that it shall equally share with New India Assurance Co. Ltd. the liability of paying compensation so far liability of both Insurance Companies being joint and several as far as the claimants are concerned.
Held :
It could be seen from plain reading of language of Section 168 of the Act that the Claims Tribunal was required to hold an inquiry into the claims and make an award determining the amount of compensation which appears to it to be just and also specify the person or persons to whom compensation shall be paid and, in making the award, it has to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Thus, where more than one party is held responsible for paying compensation, it is necessary that the Tribunal specifies the amount required to be paid by each party. However, it is also well-settled that, in case of composite negligence, the liability is normally not apportioned as both the wrong doers are held jointly and severally liable for the loss.
The finding given by the Tribunal in such a case regarding apportionment of liability would be tentative for the purpose of subsequent proceeding which might be filed by the defendant tort-feasor against the other joint tort-feasor who was not a party to the first proceeding. But such tentativeness for the purpose of contribution between two joint tort-feasors did not at all affect the right of the plaintiff-claimant to recover full damages from the defendant tort-feasor against whom the first proceeding was filed. [Para 4]
Unfortunately, in the facts of the present case, no evidence whatsoever is led on behalf of the defendants before the Tribunal, none of the drivers of any of the vehicles involved in the accident entered the box and the Tribunal was left with no alternative but to rely only upon the complaint Exhibit 72 lodged by one of the passengers of the bus and the Panchnama Exhibit 73 which hardly threw any light even on the distance at which both the vehicles were found from their respective correct side of the road. In such circumstances, there is no escape from the conclusion that the accident was attributable to the drivers of both vehicles and it was a case of composite negligence. It could also not be gainsaid that assessing the proportion of negligence on the part of driver of either of the vehicles on the basis of the extent of damage suffered by the vehicle was obviously illogical. Under such circumstances, the Tribunal ought to have held the drivers and consequently the Insurance Companies of both the vehicles to be jointly and severally liable for payment of compensation. As for apportionment of liability inter se between two insurance companies, in absence of any clear evidence or indication of liability of one driver being greater than the other, both the Insurance Companies were required to contribute equally the amounts of compensation due to the claimants, even as the claimants would have liberty to recover the full amount of compensation from either of the Insurance Companies. The submission that driver of the car which dashed with the bus from behind could also be held partly responsible for damage and the compensation was wholly devoid of any basis or substance. Therefore, the appeals preferred by the Oriental Insurance Company are required to be partly allowed. [Para 5]
The Counsel for the appellant was partly justified in submitting that the Tribunal had arbitrarily fixed several amounts under several heads, but the rough and inarticulate assessment of damages clearly appeared in each case to have resulted into award of less than just and reasonable amount of compensation. Therefore, the group of appeals filed by the New India Assurance Co. Ltd. dismissed with cost.
[Para 14]
In the facts and for the reassons discussed, the appeals of the Oriental Insurance Co. Ltd. are partly allowed with the direction that it shall equally share with the New India Assurance Co. Ltd. the liability of paying compensation to the claimants while the liability of both the Insurance Companies shall be joint and several as far as the claimants are concerned. The amounts paid or deposited by the Oriental Insurance Co. Ltd., in excess of its liability of paying 50% of the total amount of compensation, shall be directly paid to it by the New India Assurance Co. Ltd. [Para 15]
Law Laid Down :
Award of compensation amount must include pecuniary and special damages separately.
D.H. Waghela, J.—These groups of appeals under Section 173 of the Motor Vehicles Act, 1988(“the Act”, for short) are preferred from the common judgment and award dated 16.09.2004 of Motor Accident Claims Tribunal(Aux.), Surendranagar in total 33 claim petitions. Basic facts of the cases are that, on 13.09.1996 at about 4.00 a.m., all the injured claimants and three deceased victims of the accident were returning from their pilgrimage in the luxury bus No. GJ-3T-9475 which dashed against the truck No. MIU 8331 coming from opposite direction. An ambassador car bearing No. GJM 7065 also dashed with the luxury bus from behind at that time. The Insurance Companies concerned were Oriental Insurance Co. Ltd., New India Assurance Co. Ltd. and National Insurance Co. Ltd. in relation to the bus, truck and car respectively. Since, the Insurance Companies insuring the bus and the truck have filed appeals in various claim petitions and joined the original claimants and the other insurers as party-respondent, they are referred hereinafter by the name of the Insurance Company and the claimants are addressed as such. The Oriental Insurance Co. Ltd. has been aggrieved by apportionment of 70% of the liability for payment of compensation and the New India Assurance Co. Ltd. has preferred appeals to dispute even 30% of the liability apportioned to it as also to challenge the quantum of compensation awarded to the claimants in each of the appeals.
2. Arguing the appeals on behalf of Oriental Insurance Co. Ltd., learned Counsel Ms. Megha Jani, appearing with Ms. Anushree Kapadia, submitted that the Tribunal had, in the impugned award, clearly recorded the finding that the accident was a case of composite negligence and relied upon FIR at Exhibit 72 and Panchnama at Exhibit 73 for arriving at that conclusion. However, only on the ground that the bus was stated to have been damaged approximately to the extent of Rs. 1,35,000/- and the offending truck was assessed to have, been damaged to the extent of Rs. 55,000/-, negligence on the part of the driver of the luxury bus was assessed to be 70% and the driver of the truck was assessed to be responsible to the extent of 30%. It was submitted that the basis for fixing responsibility of the drivers of both the vehicles and consequently fixing the financial liability of paying compensation by the Insurance Companies also on that basis was irrational and arbitrary. Learned Counsel Ms. Jani relied upon decision of Division Bench of this Court in Gujarat State Road Transport Corporation vs. Gurunath Shahu [1989 ACJ 394] as quoted in Amarsi Jugabhai Driver vs. Vijyaben Hemantlal Dhulia [1996(3) GLR 8493]. It was observed in the latter judgment that it would always be better to sue all joint tort-feasors in one proceeding. It would not only enable the Tribunal to apportion negligence between the joint tort-feasors, but would also facilitate the task of claimants in recovering the amount of compensation awarded and in appropriate cases directions can always be issued by the Tribunal to joint tort-feasors to share the liability of paying compensation in proportion to negligence established on the record of the case. Recent judgment of Allahabad High Court in U.P. State Road Transport Corporation vs. Rajani and Others, [2007 ACJ 1771] was relied upon for the proposition that while directing payment of compensation to the victims or legal representatives of deceased of motor accident arising out of composite negligence of two motor vehicles, it was duty of the Claims Tribunal to apportion and specify the respective liability of owners or drivers or insurers of vehicles involved in the accident to the extent of damage contributed by them provided they were impleaded and heard by the Claims Tribunal. It was, however, also observed in Para 32 of the judgment that there can be no scope for doubt to hold that when an accident takes place on account of composite negligence of two or more motor vehicles, the claiman
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