Composite negligence principles allow claimants to recover damages from joint tortfeasors, even when contributory negligence is present.

JUDGMENT

This appeal is filed by the claimants in O.P (MV) No.877 of 2003 on the file of the Motor Accidents Claims Tribunal, Thalassery, seeking enhancement of compensation awarded by the tribunal and challenging the contributory negligence. The respondents herein are the respondents before the tribunal.

2. According to the claimants, on 06.02.2002 at about

04.45 p.m., while the deceased Pradeepan was travelling in a jeep bearing registration No.KL-11/B-5882 from Kannur to Uliyil, due to the rash and negligent driving of the driver of the jeep, it hit against a bus with registration No.KRC/4599, thereby the deceased sustained serious injuries and succumbed to the injuries. The claimants who are the wife and the mother of the deceased, approached the tribunal claiming a total compensation of ₹5,00,000/-.

3. The first, second and third respondents were the driver, owner and the insurer of the jeep respectively, and respondent Nos. 4 to 6 were the owner, driver and the insurer of the bus respectively and supplemental respondents Nos.7 to 15 were the legal heirs of the first respondent respectively. The first respondent expired during the pendency of the claim petition. The second respondent filed a written statement, denying the negligence attributed on the part of the driver of the jeep. The third respondent – the insurer of the jeep filed a written statement admitting the insurance policy, disputing the liability and quantum of compensation claimed. Thereafter, as per the order dated 06.07.2008 in I.A.No.3430/2008, the written statement of the insurer of the jeep was amended contending that as per the policy issued to the jeep there is no liability towards gratuitous passengers carried in the vehicle, since they had not collected any additional premium to cover the risk of gratuitous passengers. Hence, they sought for exoneration of liability. The sixth respondent – the insurer of the bus filed a written statement admitting the insurance policy but disputing the quantum of compensation claimed, and contended that the accident occurred solely due to the negligence on the part of the driver of the jeep. Before the tribunal, Pws 1 to 3 were examined and Exts.A1 to A23, Exts.B1 to B3 and Ext.X1 were marked. The tribunal, after analysing the pleadings and materials on record, found 85% contributory negligence on the part of the driver of the jeep and 15% on the part of the bus driver, and awarded a sum of ₹4,32,500/- as compensation under different heads with interest @ 7.5% per annum from the date of petition till realization with proportionate costs against the 2nd respondent/owner of the jeep and the 6th respondent/insurer of the bus respectively in the ratio 85:15 respectively. Dissatisfied with the quantum of compensation awarded as well as challenging the liability imposed on the driver of the jeep, the claimants have come up in appeal.

4. Heard the learned counsel for the appellants and the learned standing counsel for the respondent insurance company. Though notice was served on the second respondent -

owner, they chose not to appear before this Court.

5. The learned counsel for the appellants/claimants submitted that the tribunal had found 85% negligence on the part of the driver of the jeep and 15% negligence on the part of the driver of the bus. The deceased herein was the passenger in the jeep. The learned counsel further submitted that though a charge sheet was drawn against the driver of the jeep, PW2, who was the passenger in the jeep, had given evidence stating that the driver of the bus was negligent in causing th