Keshavrao and Ors. Vs. Faizan Khan and Ors. - (High Court of Bombay) (21 Feb 2018)
Claimants are entitled to seek compensation from any of the wrongdoers, when it is found to be a case of composite negligence
In the instant case, on 08th December, 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. The 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, 1860 (IPC).
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. By the impugned judgment, the Tribunal held that, present 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.
Supreme Court in the case of T.O. Anthony has held in respect of composite negligence, as opposed to contributory negligence, 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. 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.
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.
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 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.
Therefore, it is held that, 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 Supreme Court, the Tribunal ought to have held that, the Respondents in the instant case were liable to pay compensation to the appellants-claimants. 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. The appeal disposed off.
Tags : COMPENSATION DENIAL VALIDITY