Insurers are liable for full compensation in cases of composite negligence where the extent of fault cannot be distinctly apportioned between joint tort-feasors.

JUDGMENT :

B.P. ROUTRAY, J.

1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-insurer (Oriental Insurance Co. Ltd.) Mr. S. Roy, learned counsel for the Respondent-insurer (New India Assurance Co. Ltd.) and Mr. B. B. Singh, learned counsel for the Respondents-claimants.

2. Both the appeals arising out of two claim applications pertaining to same accident, where one person died and other one was injured, are heard together and disposed of by this common judgment.

3. MACA No.248 of 2018 has been filed by the insurer-Oriental Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6th M.A.C.T., Karanjia in M.A.C. No.125 of 2012, wherein compensation to the tune of Rs.3,25,000/- has been granted along with simple interest @7% per annum to the claimants from the date of filing of the claim application, i.e.1.11.2012 on account of death of the deceased, namely, Rezwana Parbeen in the motor vehicular accident dated 12.5.2011.

4. MACA No.225 of 2018 has been filed by the insurer-Oriental Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6th M.A.C.T., Karanjia in M.A.C. No.101 of 2013, wherein compensation to the tune of Rs.56,100/- has been granted along with simple interest @6% per annum to the claimant from the date of filing of the claim application, i.e.6.8.2013 on account of injury sustained to the claimant, namely, Rasonara Begum in the motor vehicular accident dated 12.5.2011.

5. The accident was the result of front collision between Indica Car bearing Registration No.OR-11-E-1191 and Truck bearing Registration No.OR-09-P-1859 on a Ghat road while the Car was going up the hill and the Truck coming downhill. The deceased as well as the injured were the occupants of the Car. As per the claimants, the Car was on its left side and the Truck while coming down the hill with high speed dashed the Car swerving to right side.

6. The learned Tribunal has concluded about composite negligence of both the vehicles and by observing that there are insufficient evidences to determine the extent of negligence of the respective drivers, has directed the present Appellant to indemnify entire compensation amount. This is challenged by the Appellant and Mr. Dutta, learned counsel for the Appellant-insurer (Oriental Insurance Co. Ltd.) submits that, when admittedly there is front collision between two vehicles and the Police has submitted the charge-sheet against both the drivers for criminal prosecution under Sections 279 /337/338/304A, I.P.C., the negligence of the drivers should be distributed equally and accordingly the liability to pay the compensation should be shared in same proportion.

7. Two eye-witnesses including the injured were examined in total in both the cases. Their consistent statement is to the effect that the driver of the Truck was entirely negligent for the cause of accident. The Appellant-Insurance Company though did not examine any witness on its behalf, but relied on the contents of Police papers including FIR and final form to substantiate its contention regarding contributory negligence in equal proportion on both the drivers.

8. Having perused the evidences of both these eye-witnesses, i.e. P.W.2 in M.A.C. No.125 of 2012 and P.W.1 in M.A.C. No.101 of 2013, it reveals that they have categorically stated about negligence of the driver of the Truck, who dashed the Indica Car by swerving towards right side. However, the content of the FIR goes to show that both the vehicles were coming in high speed on the Ghat road resulting the unfortunate accident. Neither party did attempt to examine the informant before learned Tribunal. It is true that productio