The principle of composite negligence and the absence of contributory negligence on the part of the victim were central to the court's decision.

JUDGMENT :

M.M. Das, J. - This appeal has been preferred by the Oriental Insurance Co. Ltd. against the judgment and Award dated 15.12.2001 passed in M.A.C.T. Case No. 777 of 1991 (167 of 1998) by the Fourth M.A.C.T., Puri.

2. Bereft of all unnecessary details, the facts reveal that on 15.7.1991 at about 8.30 A.M. when the deceased was travelling in a Matador bearing registration number OSF 7577 from Khurda to Jankia, the offending Truck bearing registration number AP-16 T-1717 coming from the opposite direction, while trying to overtake another Truck came to the right side of the road and dashed against the said Matador in which the deceased was a passenger. As a consequence of the accident, seven persons died including the deceased. It appears from the record that after the accident, the local people salvaged the deceased from inside the Matador which was severely damaged and as the deceased was then alive, he was then taken to the Hospital at Khurda and thereafter referred to the S.C.B. Medical College and Hospital Cuttack on the same day. He, thereafter, succumbed to the injuries and autopsy was conducted on 16.7.1991. A police case was registered bearing Jankia P.S. Case No. 102 of 1991 from which it appears that Final Report was filed stating that the accident took place due to the negligence on the part of the driver of the Matador who died in the accident. The parents of the deceased filed a case claiming compensation of Rs. 2,50,000/-. The appellant-insurer filed a written statement admitting that at the relevant time, the offending Truck was insured with the appellant. However, it was stated in the written statement that from the police papers it would reveal that the driver of the Matador was responsible for the accident.

3. After repeated notice to the owner of the truck, he appeared before the Tribunal below and filed a written statement on 9.9.1998. In the said written statement, he admitted the fact of accident but pleaded that since the driver of the offending truck was having a valid driving licence and the vehicle was validly insured with the appellants, the liability, if any, will be payable by the appellant-insurer.

4. Mr. Roy, Learned Counsel for the appellant vehemently argued that the impugned award should be interfered with on the ground that the Tribunal below has not given any finding with regard to the negligence on the part of the driver of the Matador and further, the amount of compensation awarded and the rate of interest as directed to be paid is exorbitantly high. He relied upon a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Sri Laxman lyer and Anr. 2003 (11) SBR 554 in support of the contention that it was incumbent upon the Tribunal to find out the extent of the contributory negligence on the part of the driver of the Matador and apportionment of the compensation between both the owners of the truck and matador. He further contended that the claimants having not impleaded the owner and insurer of the matador as parties to the case, the claim application was liable to be dismissed for non-joinder of necessary party. His further contention is that the compensation awarded being exorbitantly high, the quantum of compensation should be interfered with, even at the instance of the insurer.

5. Mr. P.C. Patnaik, Learned Counsel appearing for the claimants, on the contrary, relying upon several decisions, contended that there being no specific pleading with regard to contributory negligence either on behalf of the appellant-insurer or the owner inasmuch as neither the appellant-insurer nor the owner of the truck having adduced any evidence before the Tribunal, it is not open for the appellant to take a plea for the first time in this appeal with regard to contributory negligence. He further submitted that even though the final report submitted by the police discloses that negligence of the driver of the Matador was the cause for the accident and the final report w