In cases of composite negligence, where injuries and damage result from the negligence of two or more persons, the question of apportionment of loss between the parties does not arise, and all wrongdoers are jointly and severally liable to compensate the injured person.

Headnote:
MOTOR VEHICLES ACT - INSURANCE - LIABILITY OF INSURANCE COMPANY - TRANSFER OF VEHICLE - LIABILITY OF REGISTERED OWNER - COMPOSITE NEGLIGENCE - QUANTUM OF DAMAGES - DISFIGUREMENT - MENTAL AND PHYSICAL GROWTH - LOSS OF VISION - PAIN AND MENTAL AGONY - COSTS OF MEDICINES - ATTENDANT EXPENSES.
Fact of the Case:

A 7-year-old child, Avinash, sustained multiple lacerated wounds on his face and skull in a collision between an autorickshaw and a tempo. He underwent surgery and remained hospitalized for a fortnight, followed by rest and treatment at home for 11/2 months. The insurance company of both vehicles, New India Insurance Company, was involved in the case.
Finding of the Court:

1. The liability of the insurance company for the autorickshaw was limited to Rs. 10,000, while for the tempo, it was limited to Rs. 50,000. 2. The registered owner of the tempo remained liable even if the vehicle had been transferred to another person, as the transfer had not been reported to the registering authority. 3. The accident was a case of composite negligence, and the question of apportionment of loss between the parties did not arise. All wrongdoers were jointly and severally liable to compensate the injured person. 4. The quantum of damages was enhanced considering the permanent disfigurement, danger of vision loss, psychological setback, and obstruction in physical and mental growth suffered by the child. 5. The insurance company's liability was limited to Rs. 60,000, and the remaining amount could be recovered from the owners and drivers of the vehicles.
Issues: 1. Whether the insurance company's liability was limited to the specified amounts for the autorickshaw and tempo. 2. Whether the registered owner of the tempo remained liable despite the alleged transfer of the vehicle. 3. Whether the accident was a case of contributory negligence or composite negligence. 4. Whether the quantum of damages awarded by the Tribunal was adequate considering the injuries and disabilities suffered by the child. 5. How to apportion the liability among the insurance company, owners, and drivers of the vehicles.
Ratio Decidendi: 1. The liability of the insurance company was limited to the specified amounts for the autorickshaw and tempo, as per the provisions of Section 95(2)(b)(ii) of the Motor Vehicles Act. 2. The registered owner of the tempo remained liable even if the vehicle had been transferred to another person, as the transfer had not been reported to the registering authority within 14 days, as required by Section 42 read with Section 123 of the Motor Vehicles Act. 3. The accident was a case of composite negligence, as the injuries and damage resulted from the negligence of two or more persons, and the question of apportionment of loss between the parties did not arise. 4. The quantum of damages awarded by the Tribunal was inadequate considering the permanent disfigurement, danger of vision loss, psychological setback, and obstruction in physical and mental growth suffered by the child. 5. The liability among the insurance company, owners, and drivers of the vehicles was apportioned jointly and severally, with the insurance company's liability limited to Rs. 60,000.
Final Decision: The appeals were disposed of accordingly. The liability of the insurance company was limited to Rs. 60,000, and the remaining amount could be recovered from the owners and drivers of the vehicles. The quantum of damages was enhanced to Rs. 76,000, with interest at 12% per annum from the date of filing the claim petition. A sum of Rs. 6,000 was to be paid in cash, and the remaining Rs. 70,000 was to be deposited in a fixed deposit account for a period of three years, renewable for a further period of three years.

JUDGMENT

1. - All these three appeals arise against the award dated July 31, 1985, passed by the Motor Accidents Claims Tribunal, Jaipur.

2. Avinash, a young child of 7 years, was travelling in an autorickshaw No. 5442. Tempo No. RRL 6097 was coming from the opposite, direction. The autorickshaw and tempo collided and Avinash sustained multiple acerated "wounds on his face and skull. He was operated on and had to remain in the hospital for a fortnight and, thereafter he was advised rest and treatment at his residence. He remained in bed for a period of 11/2 months thereafter at his house. It will not be out of place here to mention that New India Insurance Company is the insurer of both the vehicles, i.e., the tempo and the rickshaw.

3. In Appeal No. 293 of 1985 (New India Insurance Company v. Avinash ), it was submitted by the appellant that the liability of the insurance company cannot exceed Rs. 10,000. The maximum liability of the insurance company has been fixed under Section 95(2)(b)(ii) as Rs. 10,000 in the case of an autorick shaw. This appeal succeeds and it is hereby directed that the liability in the case of autorick shaw cannot exceed Rs. 10,000 as far as the insurance company is concerned and the rest of the amount can be recovered from the owner and driver of the autorick shaw. It will not make any difference as tempo RRL 6097 was also insured with the New India Insurance Company. In the case of a tempo, the liability has been limited only up to Rs. 50,000. Naturally, the liability can be fixed up to Rs. 50,000 under the insurance policy of the tempo. It was submitted by Mr. Bhargava, counsel for the insurance company, that the vehicle was sold by the owner of the tempo to one Abdul Aziz. Abdul Aziz has not been produced in the witness box by any of the parties. The burden lies on the insurance company to prove that the tempo has been sold. Apart from that, a person who is the victim of an accident cannot know about the underhand transactions, if any, effected. The registered owner is the owner of the vehicle for all practical purposes. It is the duty of the registered owner to inform the registering authority within a period of 14 days about the transfer, if any, effected. The mandate of the law cannot be flouted and the registered owner cannot escape the liability on the ground that he has transferred the vehicle to a third party. Registration of a vehicle is necessary under the Motor Vehicles Act so that the victims of the accident can know who is the real owner of the vehicle. Apart from that, if there is a violation of Section 42 or Section 123 of the Motor Vehicles Act, the owner is responsible and can be punished under Section 42 read with Section 123 of the Motor Vehicles Act. Registration is also necessary for the purpose of implementation of law including the criminal law. Any party can take the defence if allowed to do so by saying that he has transferred the vehicle. This type of escaping the liability under the criminal law as well as the civil law cannot be allowed. Though, in the instant case, I feel that the appellants have failed to prove that there was any transfer in favour of Abdul Aziz, assuming for the time being that there was a transfer in favour of Abdul Aziz, even then the liability of the registered owner does not cease. In such cases, the registered owner as well as the real owner both will be liable and they will be responsible for the payment of compensation to the plaintiff. In the case of Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 (AP) [FB] : [1986] ACJ 1 , the High Court of Judicature of the State of Andhra Pradesh has held that the insurance company cannot raise the defence that the policy lapses because of the sale of the vehicle I it cannot contend that the accident took place due to the negligence on the part of the transferee and the insurance company is not liable. It cannot also contend that the transferor-insurance company is not responsible to redeem the co

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1987 Supreme(Raj) 731

RAJASTHAN HIGH COURTD.L.Mehta, J.New India Assurance Co. Ltd. - AppellantVersusAvinash and ors. - RespondentS.B. Civil Misc. Appeals Nos. 293, 347 and 351 of 1985.Decided On : 20-08-1987

In cases of composite negligence, where injuries and damage result from the negligence of two or more persons, the question of apportionment of loss between the parties does not arise, and all wrongdoers are jointly and severally liable to compensate the injured person.

Cases Referred (2)

RAJASTHAN HIGH COURT
D.L.Mehta, J.
New India Assurance Co. Ltd. - Appellant
Versus
Avinash and ors. - Respondent
S.B. Civil Misc. Appeals Nos. 293, 347 and 351 of 1985.
Decided On : 20-08-1987