Madhya Pradesh High Court
National Insurance Company Limited vs Kamla Pd. And Ors. on 19 December, 2002
Equivalent citations: 2004ACJ2154, 2003(1)MPHT406
ORDER S.P. Khare, J.
1. This is an appeal by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act') challenging the order by which compensation has been awarded to the claimants on their application under Section 166 of the Act. The order in this appeal will also govern the disposal of connected Misc. Appeals bearing Nos. 844/2001, 845/2001, 846/2001, 847/2001, 848/2001, 850/2001, 852/2001, 865/2001, 866/2001, 867/2001, 879/2001 and 880/2001.
2. The facts relevant for the decision of the points raised in this appeal are that on 8-4-1994 there was a collision between mini-bus No. MP-20-E-9311 and Tanker No. MP-20-A-8447 coming from opposite directions on the main road near Village Nigri. The mini bus was owned by non-applicant No. 1 Smt. Prabha Sharma and insured by non-applicant No. 2 United India Insurance Company. The tanker was owned by non-applicant No. 3 Subhash Chandra and insured with non-applicant No. 4 National Insurance Company Limited. It was being driven by non-applicant No. 5 Heera Bahadur. The driver of the mini bus died on the spot. Ten other persons travelling in the mini bus also died and five were injured. 16 cases were filed before the Claims Tribunal, Jabalpur. These were consolidated for trial by order dated 12-2-1999. These were contested by the two Insurance Companies only. The owners of the two vehicles did not file any reply to the application. The driver of the Tanker also did not come forward to contest the cases nor he was examined as a witness to explain how the accident happened. The National Insurance Company Limited on its application under Section 170 of the Act was granted permission to contest the claims on all the grounds. This order was passed in three cases on 26-11-1999 and as all the cases had been consolidated it would ensure to the benefit of this Company in all the cases. This appeal has been filed by this Insurance Company alone and in such a situation the appeal at the instance of the Insurance Company is maintainable in view of the law laid down by the Supreme Court recently in National Insurance Co. Ltd. v. Nicolletta Rohtagi, (2002) 7 SCC 456. It has been held that where the Insurance Company has obtained permission to contest the claims as per Section 170 of the Act it can in its appeal under Section 173 of the Act challenge the finding of the Claims Tribunal on the question of negligence also.
3. The Claims Tribunal has recorded the finding that there was negligence on the part of the Tanker driver only which resulted in the accident and, therefore, the order awarding the compensation has been passed against the driver, owner and the insurer of that Tanker. According to the Tribunal there was no negligence on the part of the driver of the mini bus and therefore the owner and the insurer of that bus have been exonerated.
4. The only point which has been raised in these appeals by the learned Counsel for the appellants is that there was contributory negligence on the part of the driver of the mini bus and, therefore, the amount of compensation should have been apportioned between the two Insurance Companies. The quantum of compensation awarded in each case has not been challenged nor the award has been assailed on any other ground.
5. The only point for determination in this appeal is whether there was contributory negligence on the part of the driver of the mini bus and, therefore, the liability to pay compensation should be apportioned between the owners and insurers of both the vehicles.
6. It is pointed out by the learned Counsel for the appellant that in the applications under Section 166 of the Act it has been stated that there was negligence of the drivers of both the vehicles and in view of this admission the Claims Tribunal could not exonerate the owner and insurer of the mini bus. It is also argued that the Tribunal could not look into the record of the criminal case to rely upon the charge-sheet, FIR, the seizure memos and the statements of the witnesses recorded under Section 161, Cr.PC as those witnesses were not examined in the claim cases.
7. After hearing the learned Counsel for both the sides and perusal of the material on record, we are of the opinion that the view taken by the Claims Tribunal is correct. The first striking feature of the case is that though the appellant Insurance Company obtained the permission of the Claims Tribunal under Section 170 of the Act to contest the claims on all the grounds it made no efforts to summon and examine the driver of the Tanker who is alive. The driver of the mini bus has died in the accident. Therefore, the driver of the Tanker alone could explain how the accident happened. He alone could show how the driver of the mini bus was negligent. He could alone establish that he himself was not solely negligent but the conduct of the driver of the other vehicle was equally blame-worthy or he had the last opportunity to avert the accident. The alleged contributory negligence of the driver of the other vehicle could be proved by adducing the evidence of the Tanker driver. As he did not enter the witness-box the inference has to be drawn that if he had been examined he would not have supported the theory of contributory negligence of the mini bus driver. Illustration (g) to Section 114 of the Evidence Act provides that the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. It was held by their Lordships of the Privy Council in Gurubux Singh v. Gurudayal Singh, AIR 1927 P.C. 230, that it is the bounden duty of a party acquainted with the facts of the case to give evidence in support of his case and the failure to do so would be the strongest possible circumstance going to discredit the truth of his case. Following this decision it has been reiterated by this Court in G.K Carpenter v. N.N. Rawat, AIR 1970 MP 225, that when a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him. As in the present case the Tanker driver was the best witness to establish the contributory negligence, if any, on the part of the mini bus driver and as he has been kept out of the Court the story of contributory negligence becomes extremely weak.
8. It is an admitted fact that in the accident eleven persons of the mini bus died on the spot and six were injured. The impact was very heavy. The mini bus was completely smashed. Its driver also met instantaneous death. These facts speak themselves and give a broad indication that the tanker driver was driving his vehicle rashly and negligently and it became beyond his control. The principle of "res ipsa loquitur" is fully attracted. It has been explained by the Supreme Court in Pushpabai v. Ranjit G. & P. Co., AIR 1977 SC 1735 that normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. These are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part.
9. The maxim "res ipsa loquitur" shifts the burden of proof on the issue of negligence and the defendant is required to show on a balance of probabilities that the accident was not attributable to his fault. It is stated in Winfield & Jolowiczon Tort, 14th Edition Page 144 : "Theres, which previously spoke for itself, may be silenced, or its voice may, on the whole of the evidence, become too weak or muted. Certainly, the defendant will be exonerated if he shows how the accident actually occurred and if this true explanation is consistent with due care on his part; and if he cannot do this he will still escape liability if he shows that in no respect was there any lack of care on his part or on the part of persons for whom he is responsible". Similarly in Ratanlal's Law of Torts revised by Justice G.P. Singh, 23rd Edition Page 524, it is stated that onus of proving contributory negligence is on the defendant. Again at page 527 the law is stated to be that having regard to the local conditions prevailing in India, when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident. This dictum has been laid down in Mangilal v. Parasram, AIR 1971 MP 5 (FB) by the Full Bench of this Court.
10. As already stated the non-applicants in these cases have not adduced any evidence to discharge the burden which heavily lay upon them and, therefore, the finding of the Tribunal that the accident happened due to the negligence of the tanker driver alone is unassailable. It is contended that the Tribunal could not look into the documents available in the criminal case. This contention is not acceptable. Technical and formal rules of the Evidence Act do not apply to the claim cases. It is the basic principle of natural justice incorporated therein which must be observed. The report of the spot inspection, the seizure memos and the report of the investigating officer in the charge-sheet as a result of investigation could be considered by the Tribunal.
The Supreme Court has held in Khatri v. State of Bihar, AIR 1981 SC 1068, that the protection under Section 162, Cr.PC is granted to the accused and that protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is limited bar. It has no application, for example, in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act. The reports are clearly relevant under Section 35 of the Evidence Act. It is added that of course, what evidentiary value must attach to the statements contained in these reports is a matter which would have to be decided by the Court after considering these reports. In our opinion such reports are of corroborative value in claim cases though they do not constitute substantive evidence without their formal proof.
11. The Supreme Court has remarked in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, AIR 1980 SC 1354, that the Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. "The Court should not succumb to niceties, technicalities and mystic maybes". These observations go to show that the technical and formal rules in the Evidence Act should not come in the way of the Claims Tribunal in its quest in the ascertainment of the truth. Technicality should not triumph over the substance is cardinal rule in this field also.
12. The claimants have no doubt stated in their applications that there was negligence on the part of the driver of the mini bus also but that has been denied by the owner and insurer of the mini bus. There was a triangular contest. Issues were framed on this point and after trial it has been held that the accident happened due to sole negligence of the tanker driver. The general statement of the hapless victims or their heirs cannot be taken as admission. The liability was sought to be fastened by them on the owner and insurer of the mini bus by such general statements. But the owner and the insurer of the mini bus denied negligence on the part of the driver of the mini bus. Therefore, it cannot be held that the plea of contributory negligence is made out because of the general statements in the claim petitions. This issue went to trial and it has been answered on the basis of the evidence and the attendant circumstances. In our opinion also the finding of the Tribunal that there was no contributory negligence of the mini bus driver is correct.
13. Assuming that there was some negligence on the part on mini bus driver also that would not affect the claims of the applicants. It would then be a case of composite negligence except in respect of the claim of the legal representative of the driver of the mini bus. It is well known that when death or injury to a person results from collision of two vehicles due to negligence of both the drivers it is called composite negligence. Both the drivers would be joint tort-feasors. In the case of composite negligence the victim has a choice of proceeding against all or anyone of more than one wrong-doers. Every joint tort-feasor is liable for the whole damage. In the case of composite negligence, the liability cannot be apportioned. In a case of composite negligence there is no method or indicia to bifurcate or apportion the liability and the only course open in such cases can be to make them both liable jointly or severally. So far as the claimants are concerned, they can realise the amount from any one of the insurance companies and then the insurance company, which pays the entire amount, can take steps for recovering half of the amount from the other insurance company. In M.P.S.R. T. Corporation v. Abdul Rahman, AIR 1997 MP 248, our learned brother Dipak Misra, J., speaking for the Division Bench has held that the consistent view of this Court is that in cases of composite negligence, liability cannot be apportioned, and the joint tort-feasors are jointly and severally liable for the whole loss. Again a reference to Ratanlal's Law of Torts revised by Justice G.P. Singh is quite apposite. The law has been stated to be that where injury is caused by the wrongful act of two parties, the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants. The same legal position has been stated at page 207 : "Joint tort-feasors are jointly and severally liable for the whole damage resulting from the tort. They may be sued jointly or severally. If sued jointly, the damages may be levied from all or either. Each is responsible for the injury sustained by his common act".
14. In view of the above discussion there is no legal infirmity in the award passed against the appellant Company. The appeals are dismissed.