Full Text
HIGH COURT OF DELHI
Date of Decision: 06 December, 2024
IFFCO TOKIO GENERAL INSURANCE CO. LTD. ......Appellant
Through: Ms. Suman Bagga, Advocate
JUDGMENT
(1) POOJA w/o Late Sh Ravinder (2) SMT.
NARESH s/o Sh. Chand Tehsil Charkhi Dadri, Distt. Bhiwani, Haryana (5) S. RAJ KUMAR s/o Sh. Ram Chander R/o VPO Samaspur Tehsil Charkhi Dadri Distt. Bhiwani, Haryana.....Respondents Through: Mr. Anshuman Bal, Advocate for respondents N. 1 to 3 Mr. Arun Kumar, Advocate for respondents No.4 & 5 CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. An Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the Appellant/Insurance Company to challenge the Award dated 02.06.2018 vide which compensation in the sum of Rs. 20,46,083.64 along with interest @9% p.a. has been awarded to the legal heirs of deceased Shri Ravinder, who expired in the accident dated 05.02.2014.
2. Briefly stated, on 05.02.2014 at about 8:30 p.m., Late Sh. Ravinder was travelling as a passenger in Ritz car HR 79 2407 driven by one Dharmender, along with other persons. When they reached in front of the school near Village Asanda, P.S. Sadar Bahadurgarh, Haryana, the car of the deceased collided with the Offending Truck bearing no. HR614335 which was parked negligently in the middle of the road without any parking lights or indicators or reflectors. Consequently, Late Sh. Ravinder and the other passengers expired because of the injuries suffered in the accident.
3. The FIR no. 65/2014 u/s. 279/304-A IPC, 1860 was registered at P.S. Bahadurgarh, Haryana, against the driver of the offending Truck/ Sh. Naresh.
4. The Claim Petition u/s. 166 and 140 of the Motor Vehicle Act, 1988 was filed by the legal heirs of the deceased Ravinder i.e. Respondent No. 1/Smt. Pooja (widow), Respondent No. 2/Sarla Devi (mother) and Respondent No. 3/Sh. Rajbir Singh (father) along with the along with Postmortem Report, Mechanical Inspection report, Site Plan, etc.
5. Vide the Impugned Award dated 02.06.2018, the Learned Tribunal held that it was because of the sole negligence of the Driver of the Offending Truck which caused the accident and thus, granted compensation in the sum of Rs. 20,46,083.64 along with interest @9% p.a. to the legal heirs of Late. Sh. Ravinder.
6. The main ground of challenge by the Insurance Company is that the learned Tribunal has erred in fastening the entire liability on the Insurance Company of the Offending Truck, which is claimed to have been parked on the left side of the road. It is argued that the accident had taken place around 08:50 PM on 05.02.2014 and there is no evidence to prove that it was dark or there was no visibility on road due to dazzling of lights and so the truck could not be spotted at the time of the accident.
7. Learned counsel for Appellant/Insurance Company has further submitted that it was the Ritz car which was being driven rashly and negligently at a very high speed as is evident from the manner of accident. If the speed would have been as per the traffic norms, the driver of the car could have applied brakes. An Application under Order I Rule 10 CPC, 1908 was filed on behalf of the Insurance Company to implead the driver, owner and insurance company of the Ritz car but the same had been rejected. The totality of the circumstances, however, establish that there was no negligence on the part of the offending vehicle. Even otherwise, atleast 50% should have been deducted towards contributory negligence.
8. It is further submitted that driver and owner of the Truck had also appeared and stated that there was no negligence on the part of the offending vehicle. Furthermore, the driver of the truck has been acquitted by Ld. MM as the eye witnesses failed to identify him in the Criminal Case.
9. It has been pointed out that Respondent No.1, was the young widow wife of the deceased, who has already got remarried and none has been appearing on her behalf.
10. Thus, and the impugned Award is liable to be set aside.
11. Learned counsel on behalf of Respondents No.2 & 3/ parents have submitted that the learned Tribunal has rightly concluded that there was sole negligence on the part of the Truck and there is no error in the Impugned Award and the Appeal is liable to be dismissed.
12. Submissions heard and record perused.
13. To appreciate the contentions of the Insurance Company, it becomes apposite to understand the distinction between composite negligence and contributory negligence, before adverting the facts of the present case.
14. In Municipal Corporation of Greater Bombay v. Laxman Iyer &Anr. (2003) 8 SCC 731, the Supreme Court explained that Negligence is omission to do what the law obligates; even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions for which the attending and surrounding facts and circumstances have to be taken into account. If the answer is in the affirmative, it is a negligent act.
15. In Laxman Iyer & Anr. (Supra) thereafter gave a detailed distinction between composite negligence and contributory negligence. The two concepts were explained as under:
and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P.361).
16. The Supreme Court, in the landmark judgment of T.O. Anthony v. Karvarnan& Ors. (2008) 3 SCC 748 emphasized that contributory negligence applies when the injured party is also at fault, which would proportionally reduce their compensation. Per contra, in the case of composite negligence, the entire liability falls on the negligent parties without affecting the victim’s right to full compensation. This ruling underscored the fundamental difference between the two forms of negligence and their impact on compensation Claims as under: -
determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
1.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.”
17. This view taken in the case of T.O. Anthony (Supra) has also been adopted in the case of Andhra Pradesh State Road Transport Corpn. &Anr. v. K Hemlatha & Ors. [2008 (6) SCC 767].
18. In cases of Composite Negligence, the liability of all the tortfeasors is joint and several, as has also been reaffirmed by a Full Bench of the High Court of Karnataka at Bangalore in the case of Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun alias Aravind and etc.[AIR 2004 Kar. 149]. It is further settled that the claimant is entitled to full compensation, even if one tortfeasor is not impleaded and the claimant has the choice to sue either or both tortfeasors, and failure to implead one does not affect the compensation. The impleaded tortfeasor can seek contribution from other tortfeasor later. The compensation cannot be reduced due to non-impleadment of a joint tortfeasor.
19. Similar are the observations in the judgment of National Insurance Co. Ltd. v. P.A. Vergis & Ors. [1991 (1) ACC 226] wherein it was observed that it would be a case of composite negligence if the accident occurs without any negligence on the part of the claimant/victim, but due to the negligence of two or more other parties.
20. In United India Fire & Genl. Ins. Co. Ltd. v. Varghese & Ors. [1989 2 ACC 483] a victim-centric approach was taken and it was observed that if a case of composite negligence is made out where the injured/victim has suffered because of the negligence of two or more persons, the injured party has the option to proceed against one or all of the tortfeasors. An Insurer cannot argue that the Claim is unsustainable because other negligent parties have not been impleaded.
21. A similar stance was taken in United India Fire & General Insurance Co. Ltd. v. U.E. Prasad & Ors. [AIR 1985 Kar. 160], where the Karnataka High Court reaffirmed that in case of composite negligence, each negligent party can be held fully liable. Similarly, in Andhra Marine Exports (P) Ltd. &Anr. v. P. Radhakrishnan & Ors. [AIR 1984 Mad. 358], the Madras High Court held that in cases of composite negligence, every wrongdoer is liable for the entire damages, provided negligence is established.
22. While discussing the aspect of apportionment of liability of tortfeasors, the Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya& Ors. v. M.P. State Road Transport Corpn. &Anr. [2005 (1) MPLJ 372] has opined that in cases of composite negligence, there is no necessity to apportion the inter se liability of joint tort-feasors. However, in case both the joint tort-feasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal.
23. After referring to above judgments, the Supreme Court in the benchmark ruling of Khenyei v. New India Assurance Co. Ltd. (2015) 9 SCC 273 reiterated that the key difference between a case of contributory negligence and composite negligence is that in the first category, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; however, in the second category, a person who has suffered has not contributed to the accident which is the outcome of combination of negligence of two or more other persons. Thus, the principles governing the cases of composite negligence were summed up as under: - “(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”
24. From the aforesaid Judgements, it can be concluded that it is well established that if the accident involves two or more vehicles and the victim had no contribution in the accident, he is entitled to entire compensation from the two vehicles, for which neither the apportionment is necessary nor impleadment of owner/ Insurer of both the offending vehicles is mandated. Once it is proved to be a case of Composite Negligence, the liability of the two vehicles is joint and several and both are equally responsible. The victim is not required to establish or prove the ratio of liability amongst the wrongdoers. Instead, the responsibility for apportioning liability lies with the wrongdoers themselves. This ensures that that the innocent claimant/victim is not burdened with proving the degree of negligence of each tortfeasor and further allows the Claimants to recover damages without complex apportionment issues.
25. In the light of the aforesaid principles, the facts of present case, may now be considered, to ascertain whether the same is a case of Contributory Negligence or of Composite negligence or of Sole negligence of the Offending Vehicle. Negligence of the Driver of the Offending Truck: -
26. PW-1/ Sh. Rajbir, the father of the deceased has deposed that that his son died in road traffic accident on 05.02.2014 because of the stationary truck bearing no. HRR-61-4335 being wrongly parked in the middle of the road by R-1.
27. To prove the manner of accident, the Claimants had examined, PW-2/Balwan Singh, the eye witness to the accident, who tendered his Affidavit of Evidence as Ex. PW2/A. He deposed that on 05.02.2014, he was in his Car, going from Sampla to Chhahara Village to attend a marriage. He was following the car HR 79 2407, in which the deceased and other persons were travelling, who were also going to attend the Marriage function. When they reached near Village Aasanda in front of the School, P.S. Sadar Bhardurgarh, the Ritz Car HR 79 2407 collided with the Offending Truck which was negligently parked in the middle of the road without any indicators/reflectors or blinkers on. As result of the collision, all the passengers of the car suffered fatal injuries and died. He further emphasized that the accident occurred due to the sole negligence of the Offending Truck.
28. PW-2/Balwan Singh has further reiterated during the cross examination dated 29.01.2016, that though the Truck was stationary, but it was standing and parked in the middle of the road which was about 20 ft. wide. He denied the suggestion that the deceased Ravinder was driving the Ritz Car at a very high speed. He further clarified that one Dharmender was driving the Ritz car and deceased Ravinder was not the driver of the car.
29. PW-3/Smt. Pooja, the wife of the deceased, who has also supported the testimony of PW-1/Rajbir.
30. Though all the three witnesses had been cross-examined at length, nothing material could be extracted to shake the credibility of their testimony about the manner of accident. No cogent discrepancy had been brought forth in the testimony of the eye witness/PW-2.
31. The other best witness to have disclosed about the manner of accident would have been the Driver of the Offending Truck; however, he has not entered the witness box to explain why he had parked the Offending Truck and whether he had switched on the parking lights/ indicators, leading to an adverse inference being drawn against him.
32. Even R2W1- Sh. Raj Kumar, the owner of the Offending Truck, has admitted the factum of accident in his testimony, however has taken a defense that the same was caused solely because of the rash and negligent driving of the Driver of the Ritz Car as he was over-speeding. He has further deposed that the truck was on the proper side of the road as per the Traffic Rules and regulations and thus, no accident was caused by the Offending Truck. However, in the cross-examination dated 28.20.2016, he has admitted that he was neither present on the spot of accident and thus, he cannot say who was at fault for causing the accident.
33. Pertinently, even the Owner also has not mentioned that the parking lights or indicators or reflectors, of the offending truck were on to caution the other vehicles on road and since he was not an eye-witness, his testimony cannot be relied upon to ascertain the manner of accident.
34. Even in the Written Statement filed by the Respondent No. 1 and 2 in the Claim Petition i.e. the driver and owner of the offending truck, they have merely denied that the accident was caused by the Offending Truck and no defense with respect to switching on the parking lights or taking due precautionary measure, was mentioned.
35. Thus, the argument of the insurance company that the Offending Truck was stationary and thus, did not cause the accident holds no water as evidently, it was the Offending Truck which was parked on road, at 8:50 pm in the month of February, without any indicators/parking lights on, and thus, posing a threat to other vehicles plying in the Lane. The driver of the offending vehicle who parked or halted his vehicle on the road, whether due to mechanical failure or breakdown or any other emergency or even otherwise, ought to have taken precautionary measures and switched on the parking indicators or he could have put leaves/ branches/any other warning indicators for the benefit of the other vehicles plying on the road. The lack of due care and caution on part of the driver of the offending vehicle, is clearly established and the driver cannot escape liability by averring that the vehicle was stationary.
36. The argument of the Insurance Company that the accident could have been avoided if the Driver of the Ritz Car had applied breaks is without any merit. It cannot be overlooked that the accident has occurred in the month of February, at about 8:30 p.m. when it is quite dark and the parked vehicle would not be visible till the other vehicle comes too close and also that no matter what may have been done by the car driver, the collision was inevitable.
37. Similar observations were made in the recent judgment of Sushma
V. Nitin Ganpati Rangole and Ors., Civil Appeal No. 10648-53 of 2024, decided on 19.09.2024, wherein the Apex Court while discussing the liability of the driver who had parked the offending truck in the middle of the road without any parking lights or warning indicators which led to an accident and ultimately death of 4 persons, observed that “Common sense requires that no vehicle can be left parked and unattended in the middle of the road as it would definitely be a traffic hazard posing risk to the other road users”. It was opined that any unattended vehicle, parked in the middle of the road, without any parking lights switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic, is a clear violation of law and the entire responsibility for the negligence leading to the accident would be of the driver of the offending vehicle.
38. Further, it is evident from the evidence on record that the car was actually being driven by one Dharamender (who also expired in the accident) and not Sh. Ravinder. Since the deceased was a passenger, there is no question of attributing any negligence to him.
39. Thus, the Negligence of the Driver of the Offending Truck stands established by the evidence placed on record.
40. The other contention of the Insurance Company that though the Chargesheet Ex. PW3/1 was filed against the driver of the Offending truck but he has been acquitted in the Criminal case, is also not tenable in view of the judgment of Mangla Ram vs. The Oriental Insurance Company Ltd., AIR 2018 SC 1900 wherein it was observed that the negligence of the driver as set up by the Claimants, is required to be decided on the touchstone of preponderance of probabilities and not by the standard of proof beyond reasonable doubt. Thus, filing of Charge Sheet against the driver of the offending vehicle prima facie points towards the complicity in driving the vehicle negligently and rashly. The subsequent acquittal of the accused may be of no effect on the assessment of the liability required in motor vehicle accident cases.
41. This proposition that the acquittal of the Driver in a Criminal Case cannot be a ground for dismissal of the Claim before the Accident Tribunal, has been confirmed in the cases of N K V Bros (P) Ltd. vs. M. Karumal Ammal, 1980 LawSuit (SC) 141; Delhi Transport Corporation & Anr. Vs. Navjyot Singh & Ors., 2015 LawSuit (Del) 1750 and National Insurance Company Ltd. vs. Sarbjit Kaur & Ors., 2018 LawSuit (P&H)
1711.
42. To conclude, from the evidence on record, it has not been proved that the driver of the Ritz car was negligent in any manner; it was the sole negligence of the Driver of the Offending truck which caused the present accident. Therefore, it cannot be termed as a case of composite negligence but the sole negligence of the offending Truck is fully established. Conclusion: -
43. In view of the above, the Learned Tribunal has rightly concluded that the accident occurred due to the rash and negligent parking of the Offending Truck by its driver/ Sh. Naresh and has rightly fastened the entire liability on the Insurance Company of the offending truck.
44. There is no merit in the present Appeal, which is hereby dismissed along with the pending Application(s), if any.
45. The Statutory deposit be returned to the Insurance Company in accordance with law.
JUDGE DECEMBER 06, 2024 R