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2022 Supreme(Mad) 1784
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RMT. TEEKAA RAMAN, J.
A.S. Parveen & Another - Appellant
Versus
S. Ramesh & Another - Respondent
C.M.A(MD)No. 55 of 2019
Decided On : 06-05-2022
For the Appellant:Jeyaprakash, Advocate. For the Respondents: R2, R1, R3, V. Sakthivel, R4, No Appearance.
The main legal point established in the judgment is the concept of composite negligence, apportionment of compensation, and the liability of joint tort-feasors.
Headnote:
Motor Vehicle Act - Appeal - Section 173(1) - 2015(1) TN MAC 801 (SC), 2015 (2) TN MAC 577 (SC), 1998 ACJ 827, MACA.No.744 of 2005(D) - The court discussed the concept of composite negligence and contributory negligence, citing relevant legal provisions and interpretations from various judgments. The court considered the liability of joint tort-feasors, apportionment of compensation, and the extent of negligence between the parties involved in the accident.
Fact of the Case:
The claim petitioners sought modification of the award passed by the Motor Accident Claims Tribunal, holding the drivers of the car and tractor jointly and severally liable for the accident. The Tribunal fixed the contributory negligence at 50% each and awarded compensation. The claimants appealed against this decision.
Finding of the Court:
The court analyzed the evidence and legal precedents related to composite negligence and contributory negligence. It disagreed with the appellant's contention that the Insurance Company should pay the entire compensation with liberty to recover from the owner of the tractor. The court upheld the Tribunal's decision on apportionment of compensation but modified the apportionment for the deceased's mother and minor son.
Issues: The issues involved the liability of joint tort-feasors, apportionment of compensation, and the extent of negligence between the drivers of the car and tractor.
Ratio Decidendi: The court held that in cases of composite negligence, the liability of joint tort-feasors is joint and several. It also emphasized the need to apportion the percentage of negligence and fix up the liability on each vehicle to the extent of negligence.
Final Decision: The Civil Miscellaneous Appeal was partly allowed, directing the Insurance Company to deposit the compensation amount as awarded by the tribunal. The apportionment of the award granted to the deceased's mother was modified, and the minor son's share of compensation was ordered to be deposited in a nationalized bank until he attains majority.
JUDGMENT
(Prayer: Civil Miscellaneous Appeal filed under Section 173(1) of the Motor Vehicle Act, 1998, to allow the appeal and modify the judgment and decree in M.C.O.P.No.9 of 2014 dated 20.12.2017 on the file of Motor Accident Claims Tribunal VI Additional District Court, Madurai.)
1. The claim petitioners are the appellants herein seeking modification of the award passed in M.C.O.P.No.9 of 2014 dated 20.12.2017 on the file of Motor Accident Claims Tribunal - VI Additional District Court, Madurai.
2. For the sake of convenience, the parties are referred to as as per their ranking before the Tribunal.
3. The claim petitioners are the legal heirs of the deceased Sardar. The factum of the accident is not denied by the second respondent and the fourth respondent herein. The respondents 3 and 4 are the parents of the deceased. During the trial process, the fourth respondent/father of the deceased died and his wife/third respondent continued the proceedings. However, she remained ex-parte. The fifth respondent is the owner of the Tractor involved in the accident.
4. The brief case of the appellants/claimants, is as follows:
The first respondent is the owner cum driver of the car, who drove it in a rash and negligent manner and is liable for the rash and negligent act done by him. So he is liable to compensate the loss of the petitioners. The second respondent who is the Insurance Company with which the vehicle belonging to the first respondent has been duly insured is also liable to indemnify the loss of the petitioners. The 5th respondent is the owner cum driver of the Tractor, who drove it in a rash and negligent manner and is liable for the rash and negligent act done by him. So he is liable to compensate the loss of the petitioners. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.
5. The Insurance Company has filed a counter affidavit before the trial Court, wherein it is stated that the owner of the Tractor bearing Registration No.TN-65-E-5711 was himself driving the Tractor from the opposite direction at a high and uncontrollable speed and while negotiating a curve, the Tractor came to the wrong side of the road and dashed against the car. On the complaint given by the first respondent, the police has registered the case against the driver of the Tractor and after investigation, a charge sheet has also been filed only against the driver of the tractor.
6. Before the Tribunal, on the side of the petitioners, one witness/P.W.1 was examined and 23 documents were marked as Ex.P1 to Ex.P23. On the side of the respondent, one witness was examined as R.W.1 and one document was marked as Ex.R1.
7. Pending trial, the owner of the Tractor was also impleaded as a respondent and thereafter, he remained ex-parte. At the time of the accident, the driver is not having any valid Insurance Policy. After trial, on consideration of the oral and documentary evidence and also taking note of Ex.R1, the Tribunal has rendered a categorical finding that due to the composite negligence of the driver of the car, the deceased travelled in the said car, which was insured with the second respondent therein and the driver of the Tractor/owner and accordingly, fixed the contributory negligence at 50% each and awarded a compensation of Rs.38,40,000/- and in the apportionment of Rs.7,68,000/- given to the mother/third respondent herein, against the said findings, the claimants preferred this appeal.
8. The learned counsel for the appellants relied upon the judgment reported in 2015(1) TN MAC 801 (SC) in the case of Khenyei Vs.New India Assurance Company Limited and others and while dealing with the composite negligence and the contributory negligence, the Hon'ble Supreme Court has held 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.
