Saral Srivastava ORDER
Saral Srivastava, J.
1. Heard learned counsel for the parties.
2. These two appeals arise out of the same accident and the issues in the appeals are common, therefore, the appeals are being decided by a common judgment.
3. The facts of the case are that on 01.03.2005 Rakesh Kumar Agrawal was driving the Maruti Car alongwith one Munna Lal Agrawal. It was further alleged that at about 9:00 P.m. when the Maruti Car reached near village GhuGhua, it was hit by Mini Truck No. U.P. 93B-5410 driven by its driver rashly and negligently. In the said accident Bunty @ Rakesh Kumar Agrawal and Munna Lal Agrawal suffered injuries. It is alleged that Rakesh Kumar Agrawal suffered fracture and other injuries. Munna Lal Agrawal also suffered serious injuries in the accident.
4. On account of injuries suffered in the accident, Rakesh Kumar Agrawal instituted a Claim Petition No. 593 of 2005 claiming compensation of Rs. 5,34,000/- and, Munna Lal Agrawal instituted a Claim Petition No. 591 of 2005 claiming compensation of Rs. 4,34,000/-.
5. The Tribunal framed number of issues in both the claim petitions. Issue no. 1 & 2 in both the claim petitions have been framed in respect of occurrence of accident and negligence of driver of both the vehicles in the accident.
6. The Tribunal on the issue of negligence of drivers of both the vehicles in M.A.C.P. No. 593 of 2005 held that the manner in which the accident had taken place reflects that there was some negligence of the driver of Maruti Car in the accident, and consequently, the Tribunal held the negligence of driver of Maruti Car in the accident to the extent of 25% and the negligence of driver of Mini Truck to the extent of 75%.
7. However, in M.A.C.P. No. 591 of 2005 the Tribunal on the issue of negligence of driver of both the vehicles recorded a finding that though there was negligence of both the drivers in the accident, but since in the present case the claimant was sitting in the Maruti Car, therefore, it was a case of composite negligence and it is the choice of the claimants to claim compensation from any of the tortfeasors. Consequently, the Tribunal decided the issue of contributory negligence against the Insurance Company and held that it was not a case of contributory negligence rather it was a case of composite negligence.
8. The Tribunal further on the issue of driving licence held that the driver of the Truck was holding a valid driving licence on the ground that the offending vehicles namely, Mini Truck was a light motor vehicle and the driver of the Mini Truck was also holding driving licence to drive a light motor vehicle. Thus, the offending vehicle was driven by a person holding valid driving licence to drive a light motor vehicle.
9. The First Appeal From Order No. 1843 of 2008 arise out of the judgment of Tribunal in M.A.C.P. No. 593 of 2005. The First Appeal From Order No. 1842 of 2008 arising out of the judgment of Tribunal in M.A.C.P. No. 591 of 2005.
10. Learned counsel for the appellant has assailed the finding of the Tribunal on the issue of negligence in First Appeal From Order No. 1842 of 2008 arising out of the judgment of Tribunal in M.A.C.P. No. 591 of 2005, wherein the Tribunal fastened the entire liability upon the Insurance Company to pay compensation on the ground that it was a case of composite negligence not a contributory negligence.
11. Learned counsel for the appellant has further assailed the finding on the issue of driving licence in both the appeals.
12. Learned counsel for the appellant while assailing the finding in First Appeal From Order No. 1842 of 2008 has submitted that the Tribunal has recorded the finding that there was negligence of both the drivers in the accident. Hence, the Tribunal has erred in not reducing the compensation to the extent of negligence of driver of Maruti Car in the accident. He submits that the compensation awarded by the Tribunal is liable to be reduced to the extent of 25% i.e. the negligence of driver of Maruti Car in the accident as has been held by the Tribunal in M.A.C.P. No. 593 of 2005. In this regard, learned counsel for the appellant has relied upon the judgment of this Court in the case of Oriental Insurance Company Limited Vs. Iqbal Ahmad and Others MANU/UP/1505/2008 : 2008 (2) T.A.C. 725 (All.)
13. Learned counsel has further contended that the finding of the Tribunal on the issue of driving licence that the driver of the Mini Truck was holding valid driving licence is illegal and not sustainable in law, inasmuch as, the Mini Truck was a goods carriage vehicle and comes within transport vehicle and as such the driver of the Mini Truck should have been authorized by the licensing authority to drive the transport vehicle. He submits that in the case in hand, it is evident from the record that the driver of the Mini Truck was authorized to drive light motor vehicle and not the transport vehicle as the driving licence of the driver did not contain any endorsement by the licensing authority authorizing him to drive transport vehicle, and as such the finding of the Tribunal holding that the driver of the Mini Truck was having a valid driving licence is illegal and not sustainable in law.
14. Per contra, learned counsel for the respondents submitted that the Tribunal was right in fastening entire liability upon the Insurance Company to pay compensation in the Claim Petition No. 591 of 2005 instituted Munna Lal Agrawal, inasmuch as, it is settled in law that in a case of composite negligence where the liability is joint and several, it is choice of the claimants to claim compensation from either of the tortfeasor. In the instant case the claimant has chosen to claim compensation from the Mini Truck No. U.P. 93B-5410 and as such there is no infirmity in the finding of the Tribunal on the issue of negligence. He contends that it is always open to the Insurance Company to recover amount to the extent of negligence of driver of Maruti Car in a separate proceedings. In this regard he has relied upon a judgment of Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and Others on 7th May, 2015.
15. On the issue of driving licence, learned counsel for the respondents contends that the issue as to whether to drive light motor vehicles falling in the category of transport vehicle, the driver of said vehicle is required to hold a licence authorizing him to drive transport vehicle is settled by the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited MANU/SC/0797/2017 : (2017) 14 Supreme Court Cases 663, wherein the Apex Court has held that the light motor vehicles as defines Section 2(21) of the Motor Vehicles Act, 1988 would include a transport vehicle as per the weight prescribed under Section 2(21), read with Section 2(15) and 2(48) and to drive such a vehicle, no separate endorsement on the licence authorizing him to drive transport vehicle is required.
16. I have considered the rival submissions of the counsel for the parties and perused the record.
17. With regard to the submissions of counsel for the appellant on the issue of negligence in F.A.F.O. No. 1842 of 2008, it is apposite to notice that it is admitted on record that the claimant was sitting in the Maruti Car and there was no negligence of the claimant in the accident. Even if the Tribunal has recorded finding holding the negligence of driver of both the vehicles, it is settled in law as has been held by the Apex Court in the case of Khenyei (Supra), that it is open to the claimant to recover entire compensation from one of the joint tortfeasors. In this regard, it is useful to notice Paragraph No. 18 of the judgment the relevant portion whereof is extracted herein below:-
"18. ......................
What emerges from the aforesaid discussion is as follows:
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."
18. So far as the judgment of this Court in the case of Iqbal Ahmad (Supra) relied upon by the appellant is concerned, the said judgment is not applicable in the facts of the present case. The aforesaid judgment of this Court held that no compensation can be claimed by a person, who himself is responsible for the accident on account of rash and negligent driving, whereas in the instant case the claimant was not negligent in the accident. Thus, this Court is of the opinion that the finding of the Tribunal on the issue of negligence in M.A.C.P. No. 591 of 2005 is supported by the judgment of the Apex Court in the case of Khenyei (Supra) and hence there is no infirmity in the finding recorded by the Tribunal on the issue of negligence. Consequently, the finding of the Tribunal on the issue of negligence is affirmed.
19. The submissions of the counsel for the appellant in respect of driving licence that the driver of Truck was not authorized to drive transport vehicle, as he was driving a transport vehicle has no substance in view of the judgment of the Apex Court in the case of Mukund (Supra), wherein the Apex Court has held that if a light motor vehicle falls in the category of transport vehicle, to drive such a vehicle, no endorsement by the licensing authority on the driving licence authorizing him to drive transport vehicles is required. Paragraph No. 60 of the Judgment of Apex Court in the case of Mukund (Supra) is reproduced herein below:-
"60. Thus, we answer the questions which are referred to us thus:
60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10 continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form."
20. Thus, the submissions of the counsel on the issue of driving licence is misconceived and deserves to be rejected.
21. Thus, for the reasons given above both the appeals lack merit and is hereby dismissed. There shall be no order as to cost.
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