Punjab-Haryana High Court
National Insurance Co. Ltd. vs Santosh And Ors. on 24 November, 1997
Equivalent citations: 1999ACJ1262
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. National Insurance Co. Ltd. (hereinafter described as 'the appellant') by virtue of the present appeal challenges the award of Motor Accidents Claims Tribunal, Sonepat, dated 4.6.1996. The learned Motor Accidents Claims Tribunal (for short 'the Tribunal') had allowed the claim petition filed by San-tosh, Sonia and Risalo (respondent Nos. 1 to 3 in the present appeal). A sum of Rs. 4,80,000 was awarded as compensation in their favour and as against respondent Nos. 1 to 4, namely, Narayan Singh, National Insurance Co. Ltd., Raj Kumar and Ajay Kumar. This amount was awarded on account of death of Jagbir Singh. Further a sum of Rs. 50,000 was awarded as compensation in favour of Santosh against the same persons on account of the death of Sonu. It was directed that they are liable to pay interest at the rate of 12 per cent per annum from the date of filing of the petition till realisation of the amount. Out of the total compensation, the minor child of deceased Jagbir Singh was held entitled to Rs. 1,50,000. The share of minor Sonia was directed to be deposited in her name in a fixed deposit in a nationalised bank. She was to withdraw the same on attaining majority.
2. The relevant facts are tnat on 14.2.1994 Jagbir Singh is stated to be coming from Kharkhoda side on Sonepat Road along with his minor child. There were other occupants in the jeep. It was being driven by Raj Kumar respondent. When this jeep reached in the area of village Jharot Anandpur, a truck No. HNR 2475 came from the opposite side. It was being driven at a high speed by Narayan Singh respondent. The said truck struck against the jeep by coming on the wrong side. As a result of the accident that took place Jagbir Singh and his son Sonu died. Santosh, widow of Jagbir Singh, mother and another child of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation at Rs. 6,00,000 on account of the death of Jagbir Singh and Rs. 1,00,000 on account of the death of minor Sonu. It had been pointed out that Jagbir Singh was aged about 38 years at the time of the accident and was serving as a constable in Haryana Police. His salary was Rs. 3,750 and all of them were dependent on Jagbir Singh.
3. The petition as such was contested. Narayan Singh, the driver of the truck, alleged that there was no negligence on his part. In fact it was the jeep which was being driven in a rash and negligent manner. He denied his liability to pay any compensation. The appellant National Insurance Co. Ltd. has filed its separate written statement. It denied the liability to pay compensation. The appellant's case was that Narayan Singh did not hold any valid licence at the time of the accident. Therefore, the appellant was not liable to pay the compensation (sic). It was further held that death of Jagbir Singh and minor Sonu took place because of the composite negligence of Narayan Singh and Raj Kumar, namely, the two drivers of the truck and the jeep respectively. Their negligence was assessed at 50:50. With these basic findings after calculating the income, the dependency of the petitioners before the Tribunal, with proper multiplier the compensation order was passed which has already been mentioned above.
4. Aggrieved by the same, the present appeal has been filed.
5. During the course of arguments, learned Counsel for the appellant did not raise any controversy regarding the quantum of the compensation that has been awarded. He assailed the award of the Tribunal on two counts: namely, (a) Narayan Singh did not hold a valid driving licence and, therefore, as per terms and conditions of the insurance policy the appellant is not liable to pay the compensation, and (b) in any case the Tribunal was in error in holding that amount can be recovered from the owner, driver and the insurance company jointly and severally. As per the learned Counsel, once the Tribunal has held that both the drivers of the vehicles were negligent to the ratio of 50:50, it ought to have apportioned that liability to specify the award in the same ratio.
6. As regards the question as to if Narayan Singh was holding a valid driving licence, during the course of the trial, it appears Exh. R-1 copy of the driving licence was produced. On behalf of the appellant, reliance was being placed on Exh. R-4 which is a report from the Licensing Authority, Mall Road, Delhi, to the effect that the driving licence had not been issued by this Licensing Authority. It is on the strength of this certificate that the argument was being built in terms that Narayan Singh was not holding a valid driving licence.
7. It is not being disputed that during the proceedings before the Tribunal no officer or other employee of the Licensing Authority, Delhi had been examined as a witness. Only a certificate Exh. R-4 from the Licensing Authority had been produced in the form of a report. It is a settled principle of law that mere marking of the exhibit does not dispense with the proof of the document. The Supreme Court in the case of Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, had considered the said question and held that mere marking of an exhibit does not dispense with the proof of a document. In para 15 it was held:
(15) The plaintiffs wanted to rely on Exhs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judg-ments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger pay-ments than those admitted by the plain-tiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs.
Same view prevailed with the Division Bench of the Gauhati High Court in the case of P.G.D. Ombrain v. Collector of Kamrup, Gauhati, AIR 1980 Gauhati 55. While relying on the decision in the case of Sait Tarajee Khimchand (supra), the Division Bench held:
(9) That apart, except Exh. 1, the other documents exhibited in the case have not been proved according to law. It is a settled law that mere marking of an exhibit does not dispense with the proof of document. See Sait Tarajee Khim-chand v. Yelamarti Satyam, AIR 1971 SC 1865. Admittedly, in the instant case, no witness was examined for proof of the document relied on by the claimants. The certified copies of the sale deeds were simply produced and exhibited without proof. These documents are not admissible in evidence.
In other words, it becomes necessary that documents have to be proved in accordance with law. Mere production of a report/certificate from Motor Licensing Authority does not prove the document Exh. R-4. No witness as already pointed out above from the Licensing Authority had been examined. Only he could produce the record and on basis of that can make the statement in court. There could be no cross-examination in the absence of such a witness having been examined in court. In that view of the matter, therefore, Exh. R-4 could not be read in evidence. It was, therefore, not established that Exh. R-1 was not a valid driving licence. The first submission, therefore, must fail.
8. As regards the other submission, there is no controversy which has already been referred to above that the learned Tribunal concluded that both the erring drivers of the vehicles were negligent in the ratio of 50:50. The short question that comes up for consideration is whether the Tribunal ought to have apportioned the liability qua the claimants. Section 168 of the Motor Vehicles Act, 1988 reads:
168. Award of the Claims Tribunal.- (1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 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;
Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whet-her made in such application or other-wise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
This provision clearly shows that the Tribunal after giving the parties an oppor-tunity of being heard, prior to making an award determining the compensation, it has to specify the person or persons to whom the compensation shall be paid and shall also specify the amount which shall be paid by the insurer, owner or driver of the vehicle. Thus, the right of the Tribunal to make such an order cannot be disputed. On careful consideration we are of the considered opinion that qua the claimants this apportionment could not be made. As against the claimants their liability has to be joint and several.
9. A peep into some of the precedents would make the position clear. A Division Bench of the Bombay High Court in the case Maharashtra State Road Transport Corporation v. Ramchandra Ganpatrao Chincholkar, 1993 ACJ 165 (Bombay), considered a similar question. Herein the truck brushed and dashed against the right side of the bus coming from the opposite direction. The horizontal bars of the win-dows of the bus were uprooted. The right hand of a passenger was severed from the shoulder joint and fell on the road. It was held by the Tribunal that accident occurred on account of the rash and negligent driv-ing of both the vehicles or that there was a composite negligence. In para 12-A the court held:
(12-A) This was a case of composite negligence of both the drivers. Their liability was, therefore, undoubtedly joint and several. A grievance is made on behalf of the appellants that the lia-bilities ought to have been apportioned. In such cases, only inter se liabilities of the two vehicles can be apportioned and in our view, the Tribunal ought to have undertaken that exercise in the interest of finality and to avoid multiplicity of proceedings. Section 110-B of the Motor Vehicles Act mandates the Tri-bunal not only to determine the amount of compensation but also to specify the amount payable by the insurer or the owner, or the driver of the vehicle involved in the accident or by all or any of them.
Similarly, a Division Bench of Madhya Pradesh High Court in Vimla Gangotia v. National Insurance Co. Ltd., 1995 ACJ 53 (MP), was considering a similar question with respect to composite negligence of the two vehicles. The difference in the facts of the case was that the owner, driver and insurer of one of the vehicles were not made parties to the claim. This seemingly had been done to avoid the delay. It was in this backdrop that in para 20 the court held:
(20) Therefore, as both the drivers having been found equally responsible for the accident, which finding is unassailable, it would be just and proper in the circumstances of the case also to specify the amount which shall be paid by the insurer, owner and driver of the vehicle involved in the accident. Out of the total amount of compensation, i.e., Rs. 1,45,500 the owner, insurer and driver shall be liable to pay 50 per cent of this amount with interest at the rate of 12 per cent per annum from the date of application till payment. Out of this 50 per cent amount and interest, as the liability of the insurance company has been held to be fixed to its statutory limit, i.e., up to Rs. 50,000, the insur-ance company shall pay the amount of Rs. 50,000 with accrued interest at the rate of 12 per cent per annum till its pay-ment or deposit and the costs awarded by the Claims Tribunal. The balance amount of the compensation shall be payable by the owner and driver of the bus with its accrued interest at the rate of 12 per cent per annum from the date of application till payment. Of course, the owner, insurer and the driver shall be entitled to adjust all the payment deposited with their proportionate interest.
Our attention was drawn to the decision of this Court in the case of New India Assurance Co. Ltd.. v. Daljit Kaur, 1996 ACJ 756 (P&H). In the cited case there was a head-on collision between a truck and a Matador coming from the opposite directions. It was held that both the drivers were equally responsible for the accident. Holding it to be a case of composite negligence of both the drivers, it was held that liability to pay compensation would be to the ratio of 50:50 between the two insurance companies.
The Orissa High Court in the case of New India Assurance Co. Ltd. v. Ashok Kumar Acharya, 1995 ACJ 189 (Orissa), had also gone into the same controversy. The expression 'composite negligence' was succinctly described to be in para 5 as:
(5) Composite negligence is not a term defined or explained. It should ordinarily mean that both acts of negli-gence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to sepa-rate the same in order to find out the whole fault in question. The principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the per-son wronged has a choice of proceeding against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is other-wise made out. The primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negli-gence on his part, but as a result of the combined effect of the negligence of two or more other persons.
Thereafter while considering if there was joint and several liability, the court observed:
It is clear that while awarding the amount in case of composite negligence, the Tribunal can direct the payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay the amounts to the claimant in proportion as awarded by the Tribunal, there is no problem for the claimant. But if one of the parties liable does not want to honour the award of the Tribunal, it will be open to the claimant to recover the entire amount from the other, leaving such party to claim rate-able distribution from the other.
We find ourselves in respectful agreement with the said view point. In fact this ques-tion had been considered by the Division Bench of this Court in the case of Narinder-pal Singh v. Punjab State, 1989 ACJ 708 (P&H). As regards the apportionment of compensation while considering Section 110-B of the Motor Vehicles Act, 1939, the court held:
The aforesaid quotation is the repro-duction of later part of Section 110-B of the Act. The quotation enjoins upon the Tribunal not only to determine the amount of compensation payable but also the amount, which is payable by the insurance company or owner or driver of the vehicle, or by all or any of them. This means the Tribunal's jurisdiction extends to awarding the amount against all, some or one of the respondents, and if this is to be done, the Tribunal has to apply its mind on all these matters and if there are two vehicles involved and their drivers are found negligent, then the Tribunal has to apportion the amount and has to see how much would be the liability of the driver and owner of the one vehicle and that of the other. Assuming for the sake of argument that both the vehicles are insured then the Tribunal has to apportion the liability between the two insurance companies. In a given case, it is possible that one vehicle may be insured and the other may belong to Government or a private person, but not insured, then also the Tribunal has to apportion the liability so that the insurance company would know its liability for the insured vehicle and of the other, that is, the Government or the private owner. This is only for the purpose of inter se liability of the two vehicles found negligent but this deter-mination has no effect on the claimant because in law he is entitled to recover the entire amount jointly and severally. Therefore, on a reading of the provi-sions, it is clear that while awarding the amount in a case of composite negligence, the Tribunal can direct the pay-ment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility, and if both the owners or the two insurance companies, as the case may be, may pay the amounts to the claimant in propor-tion as awarded by the Tribunal, there will be no problem for the claimant.
Thereafter the court concluded that when the Tribunal has the exclusive jurisdiction, it would finally decide all the matters between the parties including inter se dis-putes between the joint tortfeasors. In para 19 further findings were to the following effect:
Moreover, when exclusive jurisdiction has been given to the Tribunal, it would not be proper to say that inter se be-tween the two joint tortfeasors, there should be fresh litigation before a civil court in separate proceedings and that court should decide the dispute. It is another cardinal rule of jurisprudence that multiplicity of proceedings on the same matter should be avoided and unless it is expressly provided or is the necessary intendment, the interpreta-tion should be such that a Tribunal of exclusive jurisdiction should finally decide the dispute on all matters be-tween them and should not leave any part to be gone into in a separate suit before another court of law. As has been noticed above it is the express provision in Section 110-B of the Act that inter se dispute between the joint tortfeasors has also to be decided, whether all of them are liable and to what extent, and if not, then which of them and for how much amount.
10. It is obvious from aforesaid that the Tribunal can apportion the liability so that the insurance company would equally become liable for the insured vehicle. It can determine as to what would be the liability of the owner and the driver of the other vehicle. This would indeed be in accordance with Section 168 of the Motor Vehicles Act, 1988, as already referred to above. But qua the claimants the liability of all would be joint and several. The appellant has no escape in this regard. That is the ratio of the decision in the case of Narinderpal Singh, 1989 ACJ 708 (P&H). In the present case, the insurance company of one of the offending vehicles, namely, Oriental Insurance Co. Ltd., had been exo-nerated. There is no controversy in this regard. The Tribunal has already held that liability between the joint tortfeasors is 50:50. Consequently, we hold that so far as the claimants-respondents are concern-ed, they are entitled to recover the entire amount jointly and severally from the appellant and others as per order of the Tribunal. But inter se between the joint tortfeasors the liability of the appellant would be 50 per cent while that of Raj Kumar and Ajay Kumar it would be 50 per cent. To that extent only the order of the Tribunal is modified.
For these reasons, subject to the above modification, the appeal fails and is dismissed.