The main legal point established in the judgment is the distinction between contributory negligence and composite negligence in motor accident claims, emphasizing the right of legal representatives to seek total compensation and the joint and several liability of tortfeasors.

JUDGMENT :

AJAI TYAGI, J.

1. By way of this appeal, the claimants have challenged the judgment and award dated 02.11.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Varanasi (herein after referred to as ‘Tribunal’) in M.A.C.P. No. 110 of 2008 awarding sum of Rs. 29,98,950/- as compensation to the claimants with interest at the rate of 6% per annum.

2. The brief facts of the case are that aforesaid claim petition was filed before learned Tribunal with the averments that the deceased Bharat Singh was husband of appellant/ claimant No. 1, namely, Pratima Singh, who died in road-accident at the age of 38 years. The deceased was well-educated Software Engineer and he had served Indian Navy also. After retirement from Navy, he was working in Pune (Maharashtra) Based Geometry Software as operational head. Regarding the factum of accident, it is averred in the petition that on 28.4.2008, he was going from Varanasi to his place of service in Pune by his Indica Car bearing No. MH-12-CR-3962. At about 9:00 p.m. 4 km. away from Rewa (MP) the Truck No. MBJ-2099 dashed the aforesaid car, when the truck was being reversed by its driver at a very high speed without blinking the indicator-light and horn. In this accident, deceased-Bharat Singh sustained serious injuries due to which he died during the treatment in Sanjay Gandhi Hospital at Rewa (MP).

3. Heard Shri S.D. Ojha, learned counsel for the appellants-claimants and Shri Arun Kumar Mishra, learned counsel for the respondent No. 3-United India Insurance Co. Ltd. Perused the record.

4. Before us, the accident is not in dispute. In this case, learned Tribunal has fixed 50% contributory negligence of the driver of the car and 50% contributory negligence of the driver of the truck. Tribunal has made apportionment of the claim between tortfeasors and only 50% amount of the compensation to be paid by the Insurance Company of the offending truck, which is respondent No. 3 and awarded the same is vehemently objected by the appellants and argued this point along with quantum fixed by the Tribunal.

5. The driver and the owner of the offending truck did not appear before the learned Tribunal. The Insurance Company-respondent No. 3 filed its written statement.

6. On the point of negligence, learned counsel for the appellants submitted that learned Tribunal has fixed 50% contributory negligence of the driver of the car and 50% contributory negligence of the driver of the truck, but the deceased was travelling in the car. He was not driving the car at the time of accident. Therefore, as far as the deceased is concerned, it is a case of composite negligence and appellants are entitled to recover the entire amount of compensation from any of the tortfeasor, but the learned Tribunal has allowed only 50% amount of compensation to be paid by the Insurance Company of the Truck, which is illegal.

7. Per contra, Shri Mishra, learned counsel appearing on behalf of Insurance Company, has submitted that since the driver of the truck was only negligent to the extent of 50%, therefore, the Insurance Co. of the truck is liable to pay 50% of the quantum and learned Tribunal has committed no error in this regard and there is no illegality or infirmity in the impugned judgment. Hence, it does not call for any interference by this Court.

8. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “th