Orissa High Court
Oriental Fire And Genl. Ins. Co. Ltd. vs Duryodhan Swain And Ors. on 26 February, 1998
Equivalent citations: I(1999)ACC222, 2000ACJ160
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, by the insurance company challenging the award of the Claims Tribunal.
2. The claimant-respondent No. 1 filed an application under Section 110-A of the Motor Vehicles Act, 1939, claiming compensation. According to his case, while he was proceeding with his goods in truck bearing the registration No. ORX 7806 belonging to the present respondent No. 2 on 13.4.85, there was a collision between the said truck and another truck bearing registration No. ORU 5828 belonging to the present respondent No. 3. The Oriental Fire & Genl. Ins. Co. Ltd., who was alleged to be the insurer, was impleaded as opposite party No. 3 as well as opposite party No. 4 on the footing that both the vehicles had been insured with those two opposite parties. It is obvious that there was no necessity to implead the very same insurance company twice over. Be that as it may, the owners of the trucks, namely, present respondent Nos. 2 and 3, who were respectively opposite party Nos. 1 and 2 before the Claims Tribunal, did not contest the case. On behalf of opposite party Nos. 3 and 4, two sets of written statement were filed denying the allegations made in the claim application.
3. The Tribunal on consideration of the evidence held that the claimant sustained injury due to the accident which occurred due to the negligent driving of the drivers of both the vehicles. It further found that the claimant was entitled to a sum of Rs. 42,000 in all as compensation and since the accident had occurred due to composite negligence of the drivers of both the vehicles who were equally responsible and since there was no evidence that the vehicle No. ORX 7806 belonging to the present respondent No. 2 had been insured, the claimant was entitled to realise a sum of Rs. 21,000 from the owner of the vehicle No. ORX 7806 and the balance sum of Rs. 21,000 from the insurer of the vehicle No. ORU 5828, as the vehicle had been insured with opposite party No. 4.
4. The insurance company (opposite party No. 4 in the claim application) has filed this appeal challenging the direction contained in the award regarding payment of Rs. 21,000 by the insurer.
A cross-objection has been filed by the claimant-respondent No. 1 claiming that the entire awarded amount of Rs. 42,000 should be paid by the insurance company.
5. The main question in the appeal filed by the insurance company being the quantum of compensation payable and the only question in the cross-objection being the liability of the insurance company to pay the entire amount and not half of the amount as directed, the appeal has been heard without issuing any notice to the owners of the two vehicles, as the aforesaid owners would not be affected adversely in any event.
6. The learned counsel appearing on behalf of the appellant has contended that in view of the provisions contained in Section 61 of the Employees' State Insurance Act, 1948, and in view of the Orissa Employees' State Insurance (Medical Benefit) Rules, 1951, specially rule 9 entitling the claimant-respondent No. 1 for medical facilities under the Act and the Rules, no compensation is payable and the claim application is not maintainable.
The contention raised is not tenable on the face of it. The provisions contained in the Employees' State Insurance Act and the Orissa Employees' State Insurance (Medical Benefit) Rules extending certain medical benefits to the employees covered under such Act and the Rules are not in derogation of the common law right of an injured to get compensation from the tortfeasor. Though the Motor Vehicles Act envisages creation of Claims Tribunal to decide the cases arising out of accidents involving motor vehicles, the basis of such liability (apart from no fault liability) is negligence of the respondents. In other words, if a person suffers any damages due to the negligent action involving the motor vehicle, the claim application is to be filed before Claims Tribunal. Such liability in common law which is now being adjudicated before the Claims Tribunal is in addition to the benefits available to an injured employee who can avail of the benefits under the Employees' State Insurance Act. In the present case, the injury sustained by the claimant-respondent No. 1 has been found to be on account of negligence of the drivers of the two offending vehicles and as such the owners of the two vehicles were liable under law to compensate the claimant-respondent. The liability of the insurance company arises because of the special contract between the insurance company and the owners. Keeping in view such undisputed principle, the contention of the appellant that the claim application is not maintainable in view of the provisions contained in the Employees' State Insurance Act and the Rules framed thereunder cannot be sustained.
7. The counsel for the appellant has also faintly challenged the assessment of compensation saying that the assessment of the amount is on higher side. However, keeping in view the nature of injury and the evidence on record, the assessment of compensation does not appear to be on the higher side and is not required to be interfered with.
8. The claimant-respondent No. 1 has filed a cross-objection stating that the entire liability should be borne by the insurance company. It has been contended by the claimant-respondent No. 1 that in view of the finding that the accident had occurred due to composite negligence of both the drivers of the two vehicles, which has not been successfully challenged, the claimant had right to get the compensation from both the owners of the offending vehicles either jointly or severally, and as such, it was not open to the Tribunal to apportion the liability between the owners of the two vehicles and to say that opposite party No. 2 (and consequently opposite party No. 4) was liable to pay only a sum of Rs. 21,000 and not the entire amount of Rs. 42,000. Such contention of the counsel for the claimant-respondent No. 1 is well-founded. Present case is not a case of contributory negligence of the claimant. Law is well settled that when an accident occurs due to the composite negligence of both the drivers, both the owners are jointly and severally liable and in such cases it is neither open nor necessary to apportion the liability between the two. [See Parsani Devi v. State of Haryana 1973 ACJ 531 (P&H); State of Orissa v. Archana Naik 1975 ACJ 116 (Orissa); and Golak Chandra Das v. Kousalya Nayak 1978 ACJ 48 (Orissa)]. As the claimant has right to realise the entire compensation from any one of the tort-feasors, the Tribunal has committed an illegality by directing that the insurer of one vehicle was liable to pay only Rs. 21,000 and the balance amount of Rs. 21,000 was to be paid by the other owner, namely, opposite party No. 1. In the present case, both the owners are jointly and severally liable to pay the entire amount and as such, the insurance company for opposite party No. 2 is also liable to pay the entire compensation of Rs. 42,000 as the liability of opposite party Nos. 1 and 2 was joint and several to the extent of the entire compensation.
9. The learned counsel for the appellant has, however, submitted that since opposite party No. 1 had not filed any appeal, such apportionment had become final and the cross-objection by the claimant-respondent No. 1 is not maintainable. Such submission is not sustainable. There is no special provision under the Motor Vehicles Act relating to the procedure to be followed in an appeal in High Court and evidently the appeal under Section 173 of the Motor Vehicles Act has to be disposed of in accordance with the normal procedure applicable to other appeals in the High Court. As such, as held by this court in the decision in Madhusudan Rai v. Basanti Kumari Devi 1973 ACJ 308 (Orissa), the cross-objection is maintainable keeping in view the provisions contained in Order 41, Rule 22 of the Code of Civil Procedure.
10. Accordingly, appeal is dismissed and the cross-objection is allowed. It is directed that claimant-respondent No. 1 is entitled to realise the entire amount of compensation of Rs. 42,000 from the present appellant. Since the appellant is being saddled with additional liability of Rs. 21,000 by this judgment, it is directed that interest on this amount till today shall be paid by the owner respondent No. 3. However, the appellant is liable to pay interest on the aforesaid amount from today till payment at the rate directed by the Tribunal. No costs.