Delhi High Court
Om Wati And Ors. vs Mohd. Din And Ors. on 20 February, 2001
Equivalent citations: 2002ACJ868, 2001IVAD(DELHI)246, 91(2001)DLT184, 2001(60)DRJ799
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
JUDGMENT B.A. Khan, J.
1. All these appeals arise out of one accident involving a limited question of the extent of the insurer's liability and whether claimants in LPAs (59, 60 and 61/1993) were liable to forego their 30% share of compensation because they had failed to plead driver and owner and insurer of the car involved in the accident. LPAs (59, 60 and 61/1993) are filed by claimants questioning forfeiture of their 30% share of compensation amounted and the other set of appeals ( Nos. 90, 91 and 92/1993) are preferred by the Insurance Company pleading limited liability up to Rs. 50,000/-.
2. One Sanjeev Kumar was driving his Car No. HRH-24 with two others-Shiv Singh and Sat Pal on 27.5.1979 when it was hit by a Truck No. DLL-5052 coming from opposite direction. All the three sustained injuries and died in the process. Their LRs filed claim petitions which were resisted by the Insurance Company on the plea of its limited liability of Rs. 50,000/-. The company took the plea in its written statement but did not seek framing of any issue of this. Nor did it place on record any original copy, carbon copy or photo-copy of the insurance policy along with or immediately thereafter. It also failed to call upon the insured to produce the original copy. It, however, produced an attested copy through its Branch Manager, R.K. Khanna (RW-1) who testified that this was the true copy of original Policy No. 459680287 covering vehicle number DLL 5052 for a period from 27.2.1979 to 26.2.1980 for a third party risk of Rs. 50,000/-. He also stated that the original policy was issued under his signature. He did not produce any other document or record to show that the company had not charged any extra premium from the insurer.
3. MACT relied upon his evidence and held the company's liability limited to Rs. 50,000/-. It also found that accident had occurred because of contributory negligence of drivers of both vehicles and accordingly apportioned 70% liability on the truck owner/driver and insurer and 30% on the car owner/insurer.
4. Claimants filed (FAO Nos. 11/1989, 23/1989 and 24/1989) against this award and disputed that there was any contributory negligence by the deceased. They alternatively contended that assuming negligence could be attributed to Sanjeev Kumar driving the car, it could not be so attributed to Shiv Singh and Sat Pal traveling in that car. They also urged that insurer's liability was unlimited and that Tribunal had fallen in error in holding it limited to Rs. 50,000/-.
5. First Appellate Court on appreciation of evidence on record concurred with the Tribunal's finding of contributory negligence and apportionment of liability into 70:30. But it disentitled claimants of car passengers Shiv Singh and Sat Pal also from receiving 30% of their compensation as they had failed to implead tort-feasors of the car as party respondents and held that they would have to forego it in favor of tort-feasors of the truck present before the Court. The Court, however, upset the Tribunal finding on the question of limited liability and held it unlimited. While doing so it substantiated it by sound and cogent reason which can be best appreciated by extracting the relevant portion of its judgment which reads as under:
"Even though strict principles of Evidence Act are not applicable but at the same time one cannot loose sight of the fact that the document which the Insurance Company wants the Court to rely must be either original or photo-copy or at least office copy. Mark-A is prepared on a totally different form. Therefore, it cannot be called true copy of the original or of office copy. In the absence of the original or the office copy, no reliance can be placed on this attested copy of the insurance policy. It has not been explained as to from which document Mark-A was compared. In the absence of any explanation, to my mind, Mark-A must have been prepared from imagination. Mr. R.K. Khanna, RW-1, has not explained as to from where and when this attested copy was prepared, because the original was not in company's possession and the office copy stood destroyed. Therefore, in the absence of the original as well as of the office copy, how could he prepare Mark-A and attest it unless he was doing it from his imagination. The owner of the truck has categorically stated that the vehicle was fully insured and the entire liability of the third party was that of the Insurance Company in the even of the accident. If the liability was limited or was "act only" policy then nothing prevented the Insurance Company from calling the original or produce the office copy. No record has been produced to show that office copy has been destroyed nor the premium receipt book and the proposal cost application had been produced. RW-1 could not deny the suggestion that these records were available in the office at Asaf Ali Road. This shows that the Insurance Company withheld the best evidence from the Court deliberately. Had the original or the office copy of the policy and other record been produced, it would have belied the plea of limited liability. The premium for covering Section 95 risk policy at the relevant time was Rs. 84/- and for third party liability Rs. 295/- per year as per motor tariff. The premium receipt register if produced could have clinched the whole issue, it was a very relevant record to prove whether extra premium was paid to cover unlimited liability as alleged by the owner of the truck. In the absence of the original policy or the office copy and the premium receipt book, to my mind, the Tribunal fell in grave error in relying on Mark-A and coming to the conclusion that the liability of insurance was limited."
6. We find ourselves in complete accord with the reasoning adopted by the First Appellate Court and feel that it could not have been stated better. Following all this we have no hesitation to conclude that Insurance Company had failed to substantiate and prove its plea of limited liability in the facts and circumstances of the case.
7. Learned Counsel for Insurance Company Mr. Suri wanted us to ignore and overlook the exercise undertaken by First Appellate Court and to go by a D.B. judgment of this Court in LPA 56/1990 titled " A.C. Gupta v. New India Assurance Co. " decided on 1.9.2000=87 (2000) DLT 779 (DB), which according to him cover the point in issue in favor of the insurer requiring us to hold that Insurance Company's liability was limited to Rs. 50,000/-. We have gone through this judgment and we find it wholly distinguishable. It appears to us that Mr. Suri had misread it to believe that Section 95 of M.V. Act envisaged a limited liability of the insurer in all events and circumstances. This judgment on the contrary held the company's liability limited in the facts and circumstances of the case and on finding that insurer had not charged any higher premium for third party risk. In the present case, however, insurer had failed to produce any record or legal evidence to prove that it had not charged any additional premium and that its liability was limited to Rs. 50,000/-. It seems to have mistakenly believed that its Branch Manager's testimony would be the last word on the subject and would do the trick to reduce its liability.
8. We accordingly affirm the finding of First Appellate Court and hold in the circumstances of the case that appellant Company's liability was unlimited and not limited to Rs. 50,000/- as claimed by it.
9. Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favor of the joint tort-feasors of the truck present before the Court as they had failed to implead tort-feasors of the car as party-respondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure , the other two deceased who were traveling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tort-feasors becomes both joint and several.
10. It logically follows from this that a claimant could choose to file a claim petition against all or any one of them and it was not necessary that he should implead all joint tort-feasors as party respondents because they were only proper parties and not necessary parties. It may as well be that claimant had not set up a case of composite negligence but if there was material on record to suggest so, neither Tribunal nor Court was disabled or incompetent to record a finding in this regard. Support for this is derived from a DB judgment of High Court in Hiraben Bhaga v. Gujarat State Road Transport Corporation and Arn. , 1982 ACJ (Supp.) 414, holding as under:
"It passes one's understanding as to how could a passenger's compensation be deducted on account of the contributory negligence of the driver of a vehicle, it is entirely the choice of the claimants whether to implead both the joint tort-feasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of one of the joint tort-feasors, if they fail to implead him as one of the opponents, in their claim petition. It would be for the imp leaded joint tort-feasors to take proceedings to get the other joint tort-feasors imp leaded in the claim petition, or for that matter such an imp leaded joint tort-feasors may select to sue the other one after the decree or award is given and the other joint tort-feasor if held liable therein. It would be however quite a different argument to advance that because the claimants did not sue one of the tort-feasors, they themselves should be held liable for the deduction of the amount, which the omitted joint tort-feasor would have been called upon to pay. Thus, there would be no deduction in the amount of compensation awarded to the appellants as done by the Tribunal."
11. We, therefore, hold that it was a case of composite negligence in case of Shiv Singh and Sat Pal and their claimants had an option to file the claim petition either against all or any one of the joint tort-feasors and their failure to implead the tort-feasors of the car was not fatal for their claim and that First Appellate Court had wrongly forfeited their 30% share of awarded compensation amount for this which they were entitled to recover from the Appellate Company, being insurer of trot-feasors of truck. It would then be open to the Company to recover such amount from the owner/insurer of the car jointly or severally.
12. The result is that appeals filed by Insurance Company (LPAs 90, 91 and 92/93) are dismissed and those filed by claimants in LPA Nos. (59/1993 and 60/1993) are allowed. The other appeal (LPA NO. 60/1993) filed by LRs of Sanjeev Kumar is partly allowed to the extent that they could recover the whole 70% compensation amount from the appellant Insurance Company.
LPA Nos. 90, 91, 92/93 dismissed LPA Nos. 59, 60/93 allowed & LPA No. 61/93 partly allowed.