Andhra HC (Pre-Telangana)
Hdfc Ergo General Insurance Company Ltd vs Vs on 29 April, 2016
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO CIVIL REVISION PETITION Nos.427 of 2016 and Batch Dated 29-04-2016 HDFC ERGO General Insurance Company Ltd......Petitioner vs. Smt.Khawjabi and others.... Respondents Counsel for the Petitioner: Learned Senior Counsel Sri Atul Nanda for A.Ramakrishna Reddy Counsel for the Respondents: Sri A.Sanjay Kishore <Gist : >Head Note : ?Cases referred 1.(2007) 5 SCC 428 2.(2008) 13 SCC 198 3.(2008) 3 SCC 748 4.(2014) 3 SCC 590 5.(2015) 9 SCC 273 6.(2010) 7 SCC 417 7.AIR 1998 SC 640 CIVIL REVISION PETITION Nos.427 and 772 of 2016 COMMON ORDER:
These two Civil Revision Petitions are being disposed of by this common order, at the admission stage, as they arise out of the applications in O.P.No.599 of 2013 on the file of the learned Principal District Judge, Mahabubnagar, seeking identical reliefs.
C.R.P.No.427 of 2016 arises out of an order in I.A.No.1309 of 2014, whereas C.R.P.No.772 of 2016 arises out of an order in I.A.No.1355 of 2014. Both the petitions were filed by the second respondent in O.P.No.599 of 2013. They were dismissed by a common order on 18.09.2015, challenging which the present Civil Revision Petitions are filed.
A ghastly road accident took place on 30.10.2013 at about 5:10 a.m. on the outskirts of Palem Village on NH-44 road (RHS) at culvert No.129/1 near KM stone No.128 Hyderabad in front of 33/11 KV electricity sub-station, where the entire bus was burnt along with the passengers. The Volvo bus bearing No.AP 02 TA 0963 started from Bangalore city on 29.10.2013 at about 11 p.m. with total occupancy. When it crossed the Pullor toll plaza, the driver of the bus appears to have driven it in a rash and negligent manner and dashed it to the culvert No.129/1 on the median (which is open to the sky in the middle), as a result of which the diesel tank was broken, sparks and flames erupted and total bus engulfed in fire, resulting in death of 45 passengers (including a little child). The above Original Petition was filed by three claimants claiming an amount of Rs.1,00,00,000/- for the death of one Mohammed Asif in the said accident. The claim petition was filed against the owner of the bus, the insurance company and two others. A written statement was filed by the second respondent, insurance company in the said O.P and the relevant portions of the written statement are extracted hereunder:
8. It is humbly submitting that during the course of investigation by the police authority, it has came into light that the incident has occurred due to negligent in building the culvert protruding on the outer side of the highway road exposing to the risks of accidents by the National Highway Authority of India (hereinafter referred to as 'NHAI').
9. It is submitted that at the very same point of time, the investigation has revealed the manufacturing defect in the placement design of the battery and fuel tank in the Volvo Bus by the manufacturer i.e. M/s.Volvo Buses India Pvt. Ltd.
(hereinafter referred to as 'M/s.Volvo').
10. It is humbly submitted before the Hon'ble Tribunal that the petitioners may kindly be directed to join M/s.Jabbar Travels, the NHAI and M/s.Volvo as they are found to be necessary parties to the proceedings.
12. It is humbly submitted that M/s.Volvo is negligent in not providing the emergency exit door in the Volvo Buses and the very same point of time, ARAI was negligent in approving the design of the bus sparing the safety of the passengers. Hence the petitioners may kindly be directed to join the ARAI as they are found to be necessary parties to the proceedings.
18. It is submitted that the luggage compartment of the bus is meant to carry the baggage of the passengers traveling in the insured vehicle. At the material time of the accident, the respondent/insured and the alleged Lessees had permitted carriage of the good and parcels viz. baby-corn bags weighing in tones, cut hairs, cell phones, memory cards, boxes of flowers, iron, leather photo frames, pumps and machinery parts, etc. belonging to the entities other then the passengers. Hence this Insurance Company is not liable to pay any compensation.
21. This carriage of goods and plying the vehicle as stage carriage is grossly in violation of the permit and therefore, this respondent is not liable to indemnify the insured and/or any other respondents against their Third party liability.
27. It is submitted that further, the placement of the battery and the fuel tank in the design of the Volvo was found very close to each other. There are 3 interconnected fuel tanks with 600 liters capacity adjacent to the battery compartment. It was observed that the impact of the bus with the culvert led to bursting of the fuel tank and sparks from the battery which was the resultant effect of the ill-fated incident of fire in the bus. With the high fuel capacity, the fire engulfed the bus rapidly leaving the driver and the attendant-cleaner incapable to save the lives of the passengers who were in deep sleep in the early hours of the morning.
28. In view of the above facts, the incident has occurred solely on of the negligence and neglect of the NHAI in building the defective culvert. Further, M/s.Volvo is equally negligent in building the wrong design of the bus in placing the fuel tank and the battery in the proximity to cause such an ill-fated event and providing the emergency exit to ensure the safety of the passengers. It is further submitted that the ARAI is also negligent in approving the design of the Volvo Buses which endangers human life. It is submitted that the fitness to the said vehicle was issued by the Motor Vehicle Inspector - RTO Bangalore Central on dt.07.10.2013 who has shown negligence by ignoring the safety precautions and measures viz. fire extinguishers, emergency exit doors, hammer to break the window in case of emergency by allowing the said bus to ply on the road in such unsafe conditions and hence, the liability may kindly be saddled on the above mentioned tort feasors and hence this respondent is not liable to pay any amount of compensation to the petitioners.
34. This respondent submits that the Provisions of Section 147 makes it clear that the policy of insurance will have to insure the person (the owner) against any liability, which may be incurred by him (owner). Therefore, unless there is a liability fixed on the owner, the question of the insurance company indemnifying the owner will not arise. In other words, the Act presupposes that before calling upon the insurance company to satisfy the judgment and awards, it is precondition that there must be actual liability being cast on the insured and unless such a liability exists, the question of the insurance company being saddled with the responsibility to satisfy the judgment and award, does not arise.
36. This respondent craves leave of this Hon'ble Court to take all defenses available to the Respondent No.1 under section 170 of M.V.Act and contest the case on all the grounds apart from those specified U/s.149(2) of M.V.Act."
I.A.No.1309 of 2014 was filed seeking impleadment of proposed respondent Nos.5 to 7 therein, who were stated to be the lessees of the bus, and I.A.No.1355 of 2014 was filed seeking impleadment of proposed respondent Nos.8 to 11 therein i.e., the National Highway Authority of India, M/s.Volvo Buses India Pvt. Ltd., Automotive Research Association of India and the Motor Vehicle Inspector - RTO Bangalore Central, Bangalore. The application in I.A.No.1309 of 2014 was supported by an affidavit stating that on the date of the accident, the bus was leased to the proposed respondent Nos.5 to 7 therein, who were in possession of the bus and the driver was under their sole control and hence they are necessary to be impleaded as parties. An affidavit was filed in support of I.A.No.1355 of 2014 with the following averments:
"I submit that during the course of investigation by the police authority, it has came to light that the incident has occurred due to neglect in building the culvert protruding on the outerside of the highway road exposing to the risks of accidents by the National Highway authority of India. To put it to the records of the Hon'ble Tribunal, it is humbly submitted that the driver of the above-alleged vehicle was driving the Volvo carefully, cautiously and with moderate speed on the correct side of the road. It was the carelessness, neglect and the sheer negligence on the part of the NHAI in building a culvert protruding on the highway road. It was observed in the police investigation that the steel railing rod painted in red is found on the left hand side of the road to highlight the culvert and the same was found missing on the right hand side of the road which is the exact spot of the accident. In view of the above facts and to adjudicate the matter on the merits, the National Highway Authority of India rep. by its Regional Officer is very much necessary party to implead in the above case as Respondent No.8.
I submit that the investigation has revealed the manufacturing defect in the placement design of the battery and fuel tank in the Volvo Bus by the manufacturer i.e. M/s.Volvo Buses India Pvt. Ltd. Further, the placement of the battery and the fuel tank in the design of the Volvo was found very close to each other. There are 3 interconnected fuel tanks with 600 liter capacity adjacent to the battery compartment. It was observed that the impact of the bus with the culvert led to bursting of the fuel tank and sparks from the battery which was the resultant effect of the ill-fated incident of fire in the bus. With the high fuel capacity the fire engulfed the bus rapidly leaving the driver and the attendant- cleaner incapable to save the lives of the passengers who were in deep sleep in the early hours of the morning. Further I submit that the Motor Vehicles Act and the Rules framed thereunder provides for the requirement for the emergency exit in all passenger carrying buses as is provided in the Volvo buses of the KSRTC and the same emergency door is absent in the present case. It is the duty of the Automotive Research Association of India to provide technical expertise in R and D, testing, certification, homologation and framing of vehicle regulations. In view of the above facts and to adjudicate the matter on the merits, the M/s.Volvo Buses India Pvt Ltd. Rep. by its General Manager and Automotive Research Association of India rep. by its Director are very much necessary parties to implead in the above case as Respondent No.9 and Respondent No.10.
I submit that the fitness to the said vehicle was issued by the Motor Vehicle Inspector, RTO Bangalore Central on dtd.07-10-2013 who has shown negligence by ignoring the safety precautions and measures viz. fire extinguishers, emergency exit doors, hammer to break the window in case of emergency by allowing the said bus to ply on the road in such unsafe conditions. In view of the above facts and to adjudicate the matter on the merits, the Motor Vehicle Inspector, RTO Bangalore Central is very much necessary party to implead in the above case as Respondent No.11."
The aforesaid applications were opposed by the claimants as well as by M/s.Volvo Buses India Pvt. Ltd., and the Automotive Research Association of India. The claimants opposed the applications in general and the counter of proposed respondent No.9 stated that the vehicle involved was more than four years old and had covered more than 9,00,000 kilometers without any issues. There are nearly 5000 Volvo buses running in India which had covered over a couple of billion kilometers on Indian roads with an excellent track record of safety. Finally they stated that the issue, whether or not the vehicle suffered from any manufacturing/designing defect is highly technical in nature and outside the scope of the summary proceedings in a matter like the present one. The counter affidavit of the proposed respondent No.10 stated that it was a registered Society under the Registration of Societies Act, 1860, and affiliated to the Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises, Government of India. It is one of the seven testing and certifying agencies authorised by the Central Government under Rule 126 of the Central Motor Vehicle Rules, 1989. Thus, there are six other agencies which are also so authorised by the Central Government under the said Rule. The vehicle involved in the accident was not certified by the said respondent. Since the proposed respondent is not a manufacturer, seller or distributor of the vehicle, it is not a necessary party. The applications were ultimately dismissed on 18.09.2015 by the Tribunal, holding as follows:
"In view of the Hon'ble Supreme Court decision reported in [2015] Acci.C.R.632 (SC) cited supra; when there is composite negligence on the part of two or more persons each of them is jointly and severally liable to the injured or dependents of the deceased for payment of the entire damages and the said injured and dependents of the deceased have the choice of proceedings against all or any of them and the claimants need not add all the joint tort feasors in their claim petition. So, the petitioner/respondent No.2 insurance company cannot dictate terms to the claimants to ad the other joint tort feasors who had some part in composite negligence which resulted the accident. Whereas in the decissional cited by the learned counsel for the petitioner/respondent No.2 insurance company, the claimants therein have added the railways or the Municipal Corporation of their choice. So, the decisions cited are in no way helpful to the petitioner/respondent No.2 insurance company. In view of the above said reasons these petitions are liable to be dismissed."
Challenging the said order, as stated above, the present Civil Revision Petitions were filed.
Learned Senior Counsel, Sri Atul Nanda appearing for the petitioner submitted that the Tribunal erred in dismissing the applications and the reasons mentioned by the Tribunal are not correct. He further submitted that the presence of all tort feasors is necessary for recording a finding on the negligence of the parties before the Tribunal and apportionment of the liability, in which event, the petitioner would be in a position to recover the amount from the other joint tort feasors. The applications were filed in the interest of the claimants only in order to adjudicate the dispute effectively. He relied on Oriental Insurance Company Limited v. Meena Variyal , Machindranath Kernath Kasar v. D.S.Mylarappa , T.O.Anthony v. Karvarnan , Pawan Kumar v. Harkishan Dass Mohan Lal , Khenyei v. New India Assurance Company Limited , Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Union of India v. United India Insurance Company Limited .
Learned Counsel for the proposed respondent No.9 in the O.P opposed the applications stating that the contentions raised by the learned Senior Counsel are not tenable and the scope of enquiry by the Tribunal cannot be expanded by including other parties.
Learned Senior Counsel for the petitioner also filed a copy of the Black's Law Dictionary, (Ninth Edition) showing the meaning given to "tortfeasor" and "joint tortfeasors". Though the learned Senior Counsel drew the attention of this Court to the above cases, this Court, after going through the ratio decided in Khenyei's case (supra), thought that the issues raised by the learned Senior Counsel are substantially covered in the said decision. The lower Court dismissed the applications of the petitioner herein relying on the said decision only and its reliance on the said decision for dismissal of the applications appears to be correct in view of the reasons given below.
Learned Senior Counsel relied on Meena Variyal's case (supra) to buttress his argument that the provisions of the Motor Vehicles Act are still based on tortious liability. He took support from that decision to submit that the Tribunal cannot forget the basic principles of establishing liability and establishing the quantum of compensation payable. He also relied on D.S.Mylarappa's case (supra) in support of his argument, as in the said case it was held that the employer and employee are joint tortfeasors and hence they are jointly and severally liable. In the said case the Supreme Court held that the finding of negligence requires the presence of driver and he should be made a party to the proceedings. Taking support from the said observations and extending the said argument, the learned Senior Counsel wanted this Court to allow the applications. The cases of Karvarnan (supra) and Harkishan Dass Mohan Lal (supra) were relied for the interpretation of "composite negligence". Ultimately, he pressed into service the decision in Regency Convention Centre and Hotels Private Limited's case (supra) to remind this Court that this Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party.
But, as stated above, the issues raised by him, to a large extent, were answered in Khenyei's case (supra). The said case arose out of collision of a bus and trailor-truck. In the said case the Supreme Court extensively considered the meaning of the words "composite negligence" and also the liability of 'joint tort feasors'. The Supreme Court ultimately held as follows:
"15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan ((2008) 3 SCC 748 :
(2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738) has held that in case of contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder: (SCC pp. 750-51, paras 6-7) "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 stand reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence.
Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
The decision in T.O. Anthony v. Karvarnan ((2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738) has been relied upon in A.P. SRTC v. K. Hemlatha ((2008) 6 SCC 767 : (2008) 3 SCC (Cri) 34).
16. In Pawan Kumar v. Harkishan Dass Mohan Lal ((2014) 3 SCC 590 : (2014) 2 SCC (Civ) 303 : (2014) 4 SCC (Cri) 639), the decisions in T.O. Anthony ((2008) 3 SCC 748 :
(2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738) and Hemlatha ((2008) 6 SCC 767 : (2008) 3 SCC (Cri) 34) have been affirmed, and this Court has laid down that where the plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa ((2008) 13 SCC 198 : (2009) 3 SCC (Cri)
519) and also as to joint tortfeasors. This Court has referred to Charlesworth and Percy on Negligence as to cause of action in regard to joint tortfeasors thus: (Machindranath Kernath Kasar case ((2008) 13 SCC 198 : (2009) 3 SCC (Cri) 519), SCC p. 212, para 42) "42. Joint tortfeasors, as per 10th Edn. of Charlesworth and Percy on Negligence, have been described as under:
'Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually.... Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.'"
17. The question also arises as to the remedies available to one of the joint tortfeasors from whom compensation has been recovered. When the other joint tortfeasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided. Apportionment of composite negligence cannot be made in the absence of impleadment of joint tortfeasor. Thus, it would be open to the impleaded joint tortfeasors after making payment of compensation, so as to sue the other joint tortfeasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tortfeasors are before the court/Tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tortfeasor can recover the amount so determined from the other joint tortfeasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.
22. What emerges from the aforesaid discussion is as follows:
22.1. In the case of composite negligence, the 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.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis--vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3. 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 the 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 the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.
22.4. 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."
The basis for filing the present applications by the petitioner in the pending O.P is that the proposed parties were also negligent and in their absence, in the event of holding the petitioner liable to pay the amount, the petitioner would not be in a position to recover the amount, if the applications were not allowed. Now the law is well settled that the liability of joint tort feasors is joint and several. In case of composite negligence, apportionment of compensation among tort feasors vis--vis claimant is not permissible. Admittedly, the petitioner is an insurer of the vehicle. The liability of the petitioner is coextensive with that of the owner/insured. It is the primary duty of the claimants to establish negligence and justify their claim. It is for the claimants to file the claim petition against the parties whom they consider as proper or necessary. Now the petitioner, in its written statement, pointed out that there are other parties who are to be impleaded in the claim petition filed by the claimants. In spite of the point raised by the petitioner herein in its written statement, if the claimants do not take necessary steps, they will be doing so at their own risk. It is not for the petitioner herein to force the claimants or the Court to implead some other parties in order to invite a finding on the role of the proposed party in the negligence which resulted in the accident. There is no material to show that the proposed parties are joint tort feasors. Even if it is assumed that some of the proposed parties are joint tort feasors, in their absence also a finding can be recorded with regard to the entitlement of the claimants and the petitioner herein can recover the amount which it was forced to part with due to the role of other joint tort feasors by initiating separate proceedings. But, the summary proceedings in a claim petition arising out of a motor vehicle accident cannot be enlarged and the Tribunal cannot be asked to give a finding with respect to the role of other parties in the accident. The reliance on United India Insurance Company Limited's case (supra) is of no avail as that case arose out of an accident caused by Jayanthi Janatha Express hitting a passenger bus at the unmanned level crossing. The decision was rendered on the facts of that case only and it cannot be extended to the authorities like National Highways Authority of India Limited who undertake laying of the roads.
The decision of the Supreme Court in Khenyei's case (supra) is a complete answer to the points raised on behalf of the petitioner. The Tribunal also relied on the said decision. In view of the same, these Civil Revision Petitions are liable to be dismissed and are accordingly dismissed.
It is needless to observe that the dismissal of the applications filed by the petitioner cannot be construed as an expression of opinion on the contentions/defences raised by the petitioner in its written statement and the Original Petition shall be disposed of on merits uninfluenced by the observations made herein above.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________________ (A.RAMALINGESWARA RAO, J) Dated:29-04-2016