Andhra HC (Pre-Telangana)
The Divisional Manager, Oriental Fire ... vs Nakkina Raju And Ors. on 14 October, 1993
Equivalent citations: 1993(3)ALT701
JUDGMENT G. Radhakrishna Rao, J.
1. This is an appeal preferred by the Oriental Fire & General Insurance Com. Ltd., respondent No. 3 challenging the judgment dated 30-7-1991 passed in O.P. No. 17 of 1988 on the file of the Motor Accidents Claims Tribunal, Khammam awarding a total compensation of Rs. 1 lakh to the 1st petitioner-claimant payable by respondents 1 to 5, for the injuries caused to the 1st petitioner in a motor accident that occurred on 20-10-1986 due to the collision of the lorry and' car.
2. The 1st petitioner was travelling in the car bearing No. ATK 1305 on 20-10-1986 to go to Tallada and 1st respondent while driving the lorry bearing No. ATS 9945 dashed against the car and the 1st petitioner received multiple injuries.
3. The lower Tribunal found that both the drivers of the vehicles drove their respective vehicles rashly and negligently. Regarding the liability of the respondents, the lower tribunal held that the drivers and owners of the lorry as well as the car are liable to pay the compensation and that the 3rd respondent-Insurance Company of the lorry is also liable to pay the same. However, the lower Tribunal held that the 6th respondent-Insurance Company with which the car is stated to have been insured is not liable to pay the compensation.
4. It is contended by Sri M. Srinivasa Rao, learned Counsel appearing for the appellant-Insurance Company that having found that there is composite negligence on the part of the drivers of both the vehicles, the lower Tribunal went wrong in restricting the liability on the appellant-Insurance Company and not fixing the liability on the 6th respondent-insurance company. In support of his contention he has relied upon Section 110-B of the Motor Vehicles Act. On the other hand, Sri K. Somakonda Reddy, learned Counsel for the 1st petitioner contended that in the case of composite nelgigence, both the drivers are jointly and severally liable and consequently both the insurance companies are liable for the compensation. Sri Batthula Venkateswara Rao, learned Counsel for the 9th respondent-insurance company contended that the travelling of a passenger in a car is prohibited and so the lower Tribunal has rightly held that the 6th respondent-insurance company is not liable for the compensation.
5. In view of the above rival contentions, it is necessary to extract Section 110-B of the Motor Vehicles Act, which reads as follows:-
"Section 110-B Award of the claims Tribunal:-
On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the claims Tribunal shall specify the amount which Shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be."
Thus, under Section 110-B, as extracted above, it is incumbent on the part of the Tribunal to apportion the liability of the insurance company or owner or driver of the vehicle inolved in the accident or by all or any of them. In this case the evidence on record clearly establishes that the accident occurred on account of the collision of the lorry and the car. That means, the vehicles inolved in the accident are lorry and car. It was also brought out by the evidence that there was composite nelgigence on the part of the drivers of both the vehicles. In support of his contention, Mr. K. Somakonda Reddy relied upon a decision in Karunakar Pradhan v. Sarojini Mishra, 1980 ACJ 121 wherein it was observed as follows:
"There was no justification for the Tribunal to apportion the liability between the owners of the vehicles in the ratio 75 : 25. The accident occurred as a result of the combined effect of the negligence of the drivers of both vehicles and without any nelgigence on the part of the deceased. The drivers of both the vehicles are joint tortfeasors and they are liable to pay compensation jointly and severally."
To the same effect is the decision rendered in Parsani Devi v. The State of Haryana, 1973 ACJ 531. In the case of a collision between a jeep and a bus, it was held by the High Court of Punjab and Haryana in the above case that it was a case of composite negligence and as such both drivers were jointly and severally liable for the whole loss and the claimants can recover the compensation from either or both of them. In K.S.R.T. Corporation v. Krishnan, the Karnataka High Court also took the same view holding that in the case of negligence on the part of both the vehicles, the drivers of both the vehicles are responsible and that they would be jointly and severally liable to pay compensation to the claimant.
6. We may go back to Section 110-B wherein it is clearly stated that the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. Thus, the statute casts a duty on the tribunal to determine the amount of compensation and specify the amount which shall be paid by the insurer or owner or driver of the vehicles involved. In Karnataka State Road Transport Corporation v. Reny Mammen, a Division Bench of the Karnataka High Court held mat in the case of composite negligence, the liability of the drivers has to be to the extent of negligence of each one of the drivers and therefore he is answerable to the claim only to that extent and not more and constitutes the vicarious liability of his master/owner of the vehicle, if any, also in the same proportion and that the liability of one cannot be foisted on the other. In some cases it is very difficult to find out which of the drivers is at fault and in such a case generally the Courts will conclude that both the drivers are at fault. But in the case of collision where there is evidence that both are equally negligent, it is desirable to apportion the liability among both the drivers by 50% : 50%. However, negligence may differ from case to case depending upon the evidence adduced. In one case the driver of one vehicle may be negligent to the extent of 70% and the driver of the other vehicle may be negligent to the extent of 30%. Though there is a composite negligence on the part of both the drivers, their negligence can be taken only in the ratio of 70 : 30 and the liability has to be apportioned among them accordingly. In the case on hand, the evidence on record clearly establishes that both the drivers are equally negligent in causing the collision and so the negligence between both the vehicles can be apportioned between the drivers in the ratio of 50 : 50. Though there is joint and several liability on the drivers of both the vehicles, the statute casts a duty on the Tribunal to apportion the liability. In these circumstances, the finding of the lower Tribunal that the 6th respondent-insurance company is not liable to pay the compensation is set aside. As the negligence on the part of both the drivers is fixed at 50:50, the liability of the insurance companies is also fixed in the ratio of 50 : 50. The C.M.A. is accordingly allowed. No costs.