- (1.) HEARD learned counsel for the parties and perused the record as well as the award of the learned Tribunal.
(2.) THIS miscellaneous appeal, under Section 173 of the Motor Vehicles Act, 1988, has been filed by the claimant-injured, who suffered injuries in a motor accident, which occurred on 15.08.1998, before the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur, wherein the learned Tribunal determined the compensation amount of Rs.82,000/-. However, the learned Tribunal came to the conclusion that the case was one on composite negligence and since only the driver, owner and insurer of only one of the vehicles involved in the accident had been impleaded as party, the claim of the appellant was reduced to half and decreed to that extent against the respondents. Learned counsel for the respondents has relied upon the judgment of the Honourable Supreme Court in the case of T.O. Anthony Vs. Karvarnan and Others, reported in (2008) 3 S.C.C. Page 748, wherein in Para Nos. 6 and 7 of the judgment their Lordships of the Honourable Supreme Court while dealing and explaining the case of composite negligence and contributory negligence has held, as follows : 6. Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has th choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoers separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or person, and partly as a result of his own negligence, then the negligence on 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 stand reduced in proportion to his contributory negligence. 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. On the basis of the above, the learned counsel for the claimant-appellant submitted that it was not at all necessary for the claimant to have impleaded the owner, driver and insurer of the second vehicle and, therefore, he was entitled to recover the entire amount from the owner, driver and insurer of the one vehicle alone, as in the present case. He, therefore, submits that in apportioning the liability and holding that the appellant entitled to only 50% of the claimed amount is erroneous on the part of the insurance company. Learned counsel appearing for the respondents, on the other hand, contended that in any evident when there are two or more joint tortfeasor the claimant must implead all of them, as party to the petition, as the respondents in this case would have the right to recover the amount from the other joint tortfeasor.
(3.) I have considered the rival submissions and perused the judgment of the Honourable Supreme Court, quoted here-in-above. So far as the claim of the appellant is concerned, I am of the view that the learned Tribunal committed a serious error of law after having held the present case to be a case of composite negligence for awarding only 50% of the amount to the claimant-appellant. Honourable Supreme Court has clearly laid down that in the case of composite negligence each of the wrongdoers is jointly and severally liable to the injured and it is the choice of the injured claimant to proceed against all or any of the wrongdoers. So far as the submission of the learned counsel for the respondents is concerned, suffice it to say that the respondent, if he had any objection or claim against the owner, driver or insurer of the other offending vehicle then the respondents would have moved an application for impleading them, as party to the claim petition and made a claim against the other party. ;