Manish Pitale JUDGMENT
Manish Pitale, J.
1. By this appeal, the appellants-claimants have challenged the judgment and order dated 09.12.2016 passed by the Motor Accident Claims Tribunal (Tribunal) in M.A.C.P. No. 24/2013, whereby the Tribunal has dismissed the claim petition of the appellants-claimants.
2. In the instant case, on 08.12.2012, the wife of the appellant No. 1, was travelling in an auto-rickshaw, which was given a violent dash from the back side by a truck driven by respondent No. 1. This truck was owned by respondent No. 2 and insured by the respondent No. 3 Insurance Company. The wife of the appellant No. 1 suffered serious injuries in this accident and she died. Crime was registered in respect of the said incident for the offences under Sections 304-A, 279, 337 and 427 of the Indian Penal code.
3. At the time of her death, the wife of appellant No. 1 was working as Headmistress in a school, run by the Zilla Parishad. She was 57 years old at the time of her death. The appellants being the husband, son and mother-in-law of the deceased, filed the aforesaid claim petition before the Tribunal, seeking compensation of Rs. 40,000,00/- along with interest.
4. By the impugned judgment and order, the Tribunal has considered the evidence and material on record and it has rendered a finding that this was a case of composite negligence, yet it has gone on to hold that the claimants failed to prove that negligence was attributable to the driver of either of the vehicles involved in the accident. On that basis, the Tribunal held that the claimants were not entitled to recover compensation from the respondents. Consequently, the claim petition was dismissed and, therefore, there was no discussion or finding rendered on the quantum of compensation to which the appellants-claimants would be entitled.
5. Mr. P.R. Agrawal, the learned counsel appearing on behalf of the appellants, submits that the Tribunal committed a grave error in dismissing the claim petition of the appellants, despite rendering a finding that the instant case was a case of composite negligence. The learned counsel submitted that once such a finding of composite negligence was rendered by the Tribunal, the claimants were certainly entitled to compensation from the owner and Insurance Company of either of the offending vehicles. Since the respondents were parties pertaining to the offending truck, the claim petition ought to have been allowed and the respondents herein should have been directed to pay compensation to the appellants. In this regard, the learned counsel appearing for the appellants has placed reliance on the judgment of the Hon'ble Supreme court in the case of T.O. Anthony vs. Karvarnan and others - MANU/SC/7181/2008 : (2008) 3 Supreme Court Cases 748.
6. The learned counsel appearing for the appellants further submitted that the finding rendered by the Tribunal that the appellants had failed to prove negligence on the part of the respondent Nos. 1 and 2 was unsustainable, particularly when a specific finding regarding composite negligence had been rendered. It was submitted that the said finding regarding failure to prove negligence on the part of the appellants was required to be set aside and that applying the ratio of the aforesaid judgment of the Hon'ble Supreme Court, the appellants were entitled to maintain the claim petition against the respondents herein.
7. On the other hand, Mr. D.N. Kukday, learned counsel appearing on behalf of the respondent No. 3 - Insurance Company, submitted that the finding rendered by the Tribunal regarding failure of the appellants in proving negligence on the part of the truck driver was based on evidence and material on record and that the dismissal of the claim petition by the impugned judgment and order was justified. In the alternative, the learned counsel for the respondent No. 3 submitted that if the contentions raised on behalf of the appellants were accepted, the matter would have to be sent back to the Tribunal for determination of the quantum of compensation payable to the appellants on the basis of the evidence and material on record.
8. Having heard the learned counsel for the parties and upon perusal of the impugned judgment and order, as also the documents on record, it is evident that the Tribunal erred in dismissing the claim petition filed by the appellants. On the basis of the material on record, the Tribunal rendered a finding that the instant case was a case of composite negligence. Having rendered the aforesaid finding, the Tribunal had committed a grave error in dismissing the claim petition. The Hon'ble Supreme Court in the case of T.O. Anthony (supra) has held in respect of composite negligence, as opposed to contributory negligence, as follows:-
"5. The Tribunal assumed that the extent of negligence of the appellant and the first respondent is fifty-fifty because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.
6. '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. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
9. In view of the law laid down by the Hon'ble Supreme Court in the said judgment, it is clear that claimants are entitled to seek compensation from any of the wrongdoers, when it is found to be a case of composite negligence. This is because, when a person suffers injuries or dies in an accident where there is no negligence attributable to him, but two or more persons are wrongdoers, it cannot be a case of contributory negligence and it becomes a case of composite negligence. In such a case, it is the choice of the claimants to proceed against either of the two or more wrongdoers responsible for the incident in question.
10. In the instant case, the deceased was travelling in an auto-rickshaw which suffered a violent dash from behind by a truck being driven by respondent No. 1, which was owned by respondent No. 2 and it was insured by the respondent No. 3-Insurance Company. The evidence and material on record shows that the Tribunal correctly rendered a finding that the instant case was a case of composite negligence, but having rendered such a finding the Tribunal was not justified in observing in its order that the accident might have occurred because the auto-rickshaw in which the deceased was travelling, applied sudden brakes due to which the respondent No. 1 truck driver could not slow down, resulting the violent dash from the back side on the auto-rickshaw, meaning thereby that there was no negligence on the part of the truck driver. On the basis of such an erroneous appreciation of material on record, the Tribunal went on to hold that the appellants-claimants in the instant case, had failed to prove negligence of the driver of any vehicle.
11. Therefore, it is held that the aforesaid findings rendered by the Tribunal to the effect that the claimants had failed to prove negligence on the part of the respondent-truck driver, are set aside. It is held that the finding of composite negligence rendered by the Tribunal in the impugned judgment and order is correct. Once such a finding was rendered, in the light of the law laid down by the Hon'ble Supreme Court, the Tribunal ought to have held that the respondents in the instant case were liable to pay compensation to the appellants-claimants.
12. The learned counsel appearing for the respondent No. 3 has made an alternative submission that even if it is found that the Tribunal was not justified in dismissing the claim petition of the appellants, the matter would have to go back to the Tribunal for determination of quantum of compensation, because if it is not sent back and this Court decides the quantum of compensation, the respondent No. 3 would stand to lose its right to appeal before this Court against determination of quantum of compensation. There is merit in the aforesaid submission made on behalf of the respondent No. 3.
13. In the light of the above, this appeal is allowed, the impugned judgment and order passed by the Tribunal is quashed and set aside. While the finding of composite negligence rendered by the Tribunal in the impugned judgment is held to be correct, the matter is sent back to the Tribunal only for determination of the quantum of compensation payable to the appellants-claimants.
14. Since the accident was of the year 2012, it would be in the interest of justice that the Tribunal decides the claim of the appellants expeditiously. Accordingly, the Tribunal is directed to dispose of the claim petition of the appellants within a period of three months from today. The parties are directed to appear before the Tribunal on 1.3.2018. The record of this case is directed to be transmitted to the Tribunal within a period of one week from today. It is made clear that there would be no need to issue fresh notice by the Tribunal to the respondents herein and that the Tribunal shall proceed to decide the issue of quantum of compensation within the aforesaid period mentioned above.
15. The appeal is disposed of in the above terms with no order as to costs.
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