Motor Vehicle Act: Damages Cannot Be Apportioned In Accidents Due To Composite Negligence: Bombay HC
The Bombay High Court at Nagpur recently reiterated that "It is well settled that right of claimants to recover damages from the tortfeasors is well settled. Once the court concludes that the case is one of the composite negligence, damages cannot be apportioned. The petitioner is entitled to recover the entire amount of compensation from all or any of the joint tortfeasors. The liability in the case of composite negligence, normally should not be apportioned, as both the wrong doers are jointly and severally liable for the whole loss. It is choice of the petitioner either to claim compensation from both the tortfeasors or any of them."
The Single Judge Bench of Justice Urmila Joshi-Phalke was dealing with a First Appeal filed by the National Insurance Company Limited impugning the order passed by the Motor Accident Claims Tribunal on the ground that the case was of contributory negligence and the claimants were not entitled to receive the compensation from them with whom the offending vehicle Tempo Trax was insured.
Advocate C.A. Anthony appeared for the National Insurance Company, the claimants were represented by Advocate Vivek Thote while the United India Insurance Co. was represented by Advocate M.M. Kalar.
Background: On June 6, 2002, one Bhaskar aged 47 years serving as a teacher (the deceased) was travelling in a Tempo Trax, insured by the National Insurance Company (appellant), was involved in an accident with a luxury bus, insured by United India Insurance Company which resulted in the death of Bhaskar. Both the Insurance companies resisted the compensation by levelling the allegation on each other of rash and negligent driving.
The Motor Accident Claims Tribunal directed both the owners of the Luxury Bus and Tempo Trax along with both the Insurance companies to pay the compensation to the claimants jointly and severally. Being aggrieved with which, the insurer company of Tempo Trax (National Insurance) approached the High Court.
The Appellant (insurance company of Tempo Trax), contended that the order of the tribunal is erroneous as the claimant No.1 admitted that the accident arose due to the rash and negligent driving of the driver of the Luxury Bus and as such the owner and the insurance company of the Luxury Bus are only liable to pay the compensation. It was also added that their liability to pay to the extent of 50% is illegal.
It was further added that the owner of the Tempo Trax has contravened the terms and conditions of the policy. Thus, the appellant/National Insurance Company Limited is not liable to pay any compensation wherein both the claimants and United India Insurance Company supported the impugned order.
Considering the submissions, the High Court said that "Whether the said accident took place due to the contributory negligence or composite negligence is the material aspect", and observed that "when both parties are equally to blame, neither can hold the other liable. There is clear difference between 'contributory negligence' and 'composite negligence'. Where a person is injured without any act or omission from his part, but as a combined effect of the negligence of two or more persons it is a case of 'composite negligence' and not a case of 'contributory negligence'. The expression 'contributory negligence' applies solely to the conduct of the claimant, in a case of personal injury and in case of compensation for death it applies to the conduct of the victim. It means that there was an act or omission from the part of the injured claimant or victim, which has materially contributed to the damage."
It was further noted that the deceased was not driving any vehicle. However, he was travelling in the vehicle. Thus, it was clear that there was no act or omission on the part of the deceased to contribute to the said accident. The High Court reiterated the Judgment of the Apex Court in the case of T.O. Anthony vs Karvarnan and others reported in 2008 (3) ALL MR 902 where it was held that composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrongdoer separately.
Accordingly, the High Court found the appeal to be devoid of merits and held that "The deceased has not contributed for the said accident. In such circumstances, each wrong doer is jointly and severally liable to pay the compensation and, therefore, the contention of the appellant/National Insurance Company Limited, that the judgment and award passed against it is liable to be set aside, is not sustainable."
Cause Title: The Divisional Manager, National Insurance Co.Ltd. v. Smt. Hemlata and Ors.
