Negligence; Ajay Kumar Vs. Ruby Devi [Patna High Court, 27-07-2016]

Tort Law – Motor Vehicle Accidents Claims – Negligence – Composite Negligence – Concept of – Whether owners of both offending vehicles to share the burden – Whether owner of one of the vehicles has got choice to ask for apportionment according to his desire? – Held, apart from having left at the option of the claimant regarding choosing the party to be impleaded in case of composite negligence, it is also apparent that it depends upon the tribunal either to demarcate inter se negligence but the same should be based upon the evidence.

Composite Negligence


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

27-07-2016

Miscellaneous Appeal No.389 of 2013

1. Ajay Kumar Son Of Shri Ram Kripal Thakur Resident Of Village- Barahi Jiwan, P.S.- Bathnaha, District- Sitamarhi

2. Narbdeshwar Pandey @ Narmadeshwar Pandey Son Of Gautam Pandey Resident Of Village- Gundi, P.S.- Krishna Nagar Dewariya, District- Bhojpur.(Owner And Driver Of Bus No. BR- 30P/2289 Respectively) (Opposite Party No. 4 and 6 respectively).

…. …. Appellant/s Versus

1. Most. Ruby Devi W/O Late Sanjay Kumar Resident Of Village- Laruyari, P.S.- Parihar, District- Sitamarhi

2. Nandani Kumari Minor Daughter Of Late Sanjay Kumar Under The Guardian Ship Of Her Mother- Most. Ruby Devi Resident Of Village- Laruyari, P.S.- Parihar, District- Sitamarhi

3. Sanjeev Kumar S/O Uma Shankar Prasad Resident Of Village And P.S.- Sursand, District- Sitamarhi. (Owner Of Truck No. Br-06g-1748)

4. Oriental Insurance Company Ltd. Motijheel, Muzaffarpur (Insurer Of Truck No. BR-06G-1748)

5. Jay Narayan Mahto S/O Saryug Mahto Resident Of Village- Jogwana, P.O. Majholia, P.S. Bathnaha, District- Sitamarhi. (Driver Of Truck No. BR-06G-1748)

6. Divisional Manager, The New India Assurance Company Ltd. Muzaffarpur (Insurer Of Bus No. BR-30P-2289) …. …. Respondent/s

Appearance : For the Appellant/s : Mr. Mukesh Pd. Singh, Advocate For the Respondent No.4: Mr. Barun Kr. Chaudhary, Advocate For the Respondent No.6: Mr. Durgesh Kumar Singh, Advocate For the Respondent No.3: Mr. Alok Kumar, Advocate For Respondent No. 1 & 2: Mr. Ashok Kr. Sinha No.2. Advocate

ORDER

With the consent of the respective parties as well as considering pendency of this appeal since 2013, the matter is being decided at the stage of admission itself.

2. It has been perceived that this appeal happens to be barred by limitation of 64 days and for condoning the same, I.A. No.7773/2015 has been filed.

3. In the facts and circumstances of the case and the grounds enumerated therein, the same is condoned.

Consequent thereupon, I.A. No. 7773/2015 is allowed.

4. The appellants who are owner as well as driver of Bus bearing Registration no. BR30P-2289 have challenged the judgment dated 25.03.2013 as well as award dated 28.11.2013 passed by Adhoc Additional Motor Vehicle Accidents Claims Tribunal-cum-Adhoc Additional Sessions Judge-2nd, Sitamarhi in Claim Case No. 25/2006 whereby and whereunder the learned Tribunal had identified Rs. 4,41,500/- as claim amount along interest at the rate of 8% from the date of framing of issue (21.04.2010) till final payment with a further direction to share the burden half and half.

5. As pleaded by the Respondents No.1 and 2/claimants, while the deceased Sanjay Kumar, husband of Most.

Ruby Devi and father of Nandini Kumari was travelling by Bus No. BR30P-2289 on 20.06.2006 and as soon as the bus reached near Village-Rampur Inerva, one Truck bearing Registration No. BR06G-1748 came from opposite side being driven in rash and negligent manner and dashed against the bus as a result of which so many passengers became injured. Deceased, Sanjay Kumar sustained head injury and died instantaneously. One of the passengers, Hari Krishna Ranjan gave his Fard-e-beyan on the basis of which Bathnaha P.S. Case no. 79/2006 was registered and accordingly, after preparing inquest report, dead body of Sanjay Kumar was sent for postmortem, on account thereof, the claimants filed instant claim case.

6. Drivers as well as owners including respective Insurance Company were made parties, out of whom, appellant no.2, driver of Bus No. BR30P-2289 had not appeared whereupon the proceeding gone against him ex parte. Appellant No.1/owner of Bus No. BR30P-2289 appeared and filed WS denying his liability. Furthermore, it has been pleaded that from perusal of Fard-e-beyan, it is evident that it happens to be the truck, offending vehicle which was being rashly and negligently driven whereupon, it dashed against the Bus. Had there been proper care and caution at the end of driver of truck, the accident could have averted.

7. It has also been pleaded that mere driving the vehicle in high speed would not cost liability unless the driving happens to be rash and negligent. There happens to be no such allegation against the driver of the Bus. Hence, no obligation could be saddled against the owner of Bus. To substantiate the same, it has also been pleaded that from location of damage caused to bus (right side), the impact could be perceived.

8. It has also been pleaded that driver possessed valid driving license at the relevant time. Bus was running under valid permit. Apart from this, it has also been submitted that in worst case, it could be appropriate 75% as well as 25% and the owner of the bus is only liable for 25% of determined claimed amount.

9. Owner of the truck bearing Registration No. BRO6G-1748 had pleaded that as the offending vehicle happens to be bus, which was being driven in rash and negligent manner, hence he is not liable to pay the claim. It has also been pleaded that the truck in question happens to be insured during the tenure of the so alleged accident.

10. Insurance Company against Truck No. BR-O6G-1748 had also filed WS reserving its protection as per Section 149(2) of the M.V. Act and for that reiterated version of Fard-e-beyan and pleaded that as the driver of the bus was rash and negligent, on account of which, bus was the offending vehicle, hence liability should be borne by the owner of the bus.

Furthermore, it has also been pleaded that the deceased met with death on account of own fault. Also question over discloser relating to income of the deceased. Then it has been pleaded that in any case, the liability should be in proportion to 50-50.

11. New India Assurance Company for bus filed WS and submitted that at the relevant time, bus was not insured under it.

12. On the basis respective pleadings following issues were found:-

(i) Whether the suit is maintainable?

(ii) Whether the accident took place on account of rash and negligent driven by the respective drivers of Truck No. BR06G 1748 as well as BR30P-2289?

(iii) Whether the owners of the respective vehicles have violated the terms ofagreement?

(iv) Whether the applicants are entitled for compensation?

(v) What other relief or reliefs, applicants are found entitled for?

13. While deciding issue no.(ii) the learned Tribunal had discussed the same in detail as is evident under para-14 of the judgment and held it to be a composite negligence and on account thereof, while deciding the other issues concluded by directing owners of both the vehicles to share the burden half and half. It happens to be the owner of the bus who has challenged the judgment and decree impugned on the limited point that he could not have been directed to share the burden to the extent of half.

14. Before coming to main issue, from the lower court record, it is evident that appellant no.2, driver of the bus bearing registration no. BR30P-2289 had not appeared and on account thereof, the case proceeded against him ex parte.

However, his presence has been perceived as a witness coming at the end of appellant no.1, owner of the bus bearing Registration No. BR30P-2289 who himself withheld to depose. It has also been perceived that in spite of having the bus uninsured, New India Assurance Company Ltd impleaded on account of being insurer of the bus but, the insurance policy commenced after accident and on account thereof, its presence has been found inefficacious.

15. Learned counsel for the appellants while challenging the finding recorded by the learned Tribunal under issue no.(ii) fully discussed under para-14 of the judgment, has submitted that the finding so arrived at by the learned Tribunal happens to be bad in law as well as on facts and that being so, would not have saddled the liability to the extent of half against the appellant. Furthermore, it has been submitted that from perusal of para-14 of the judgment impugned, it is evident that the learned Tribunal had not taken into consideration the evidences having been produced on record not only by the appellants/opposite party rather on behalf of respondents no. 1 and 2/claimants also whereunder there happen to be specific disclosure that it happens to be the driver of truck bearing Registration No. BR06G-1748 which was being driven in rash and negligent manner and on account of such rashness and negligence, the accident took place costing life of Sanjay Kumar, the deceased as well as injuries to other different passengers.

16. To substantiate such plea, it has also been stated that learned Tribunal had based its finding over the Fard-e-beyan of one of the passengers, which ought not to be, in the background of the fact that the maker of document was not at all before the court as a witness, contrary to it, the witnesses on behalf of respondent 1 and 2/claimants apart from pleading have categorically stated that driver of truck bearing Registration No. BR06G-1748 was negligent and not diligent in discharging his duty carefully and cautiously. Had there been proper exercise of precaution and would have been diligent one, the accident would not have taken place. Therefore, the learned Tribunal was wrongin deciding the issue no.(ii) identifying as well as directing the appellant to share half and half, the claimed amount. So submitted that the judgment impugned is fit to be set aside.

17. The learned counsel for the appellant further submitted that in so many judicial pronouncements it has been held that mere indulging of two vehicles in accident would not give an opportunity to saddle the liability against both the defaulters half and half rather, the Tribunal is expected to identify the obligation and awarded amount should be directed to be shared in proportionate thereof. To substantiate the same, the learned counsel for the appellant also relied upon 2008 ACJ 1964, 2006 ACJ 1285, 2009(3) PLJR 25, (2008)3 SCC 748, (2011)3 SCC 646, 2004(2) PLJR 755, 2008(3) PLJR 748, 2006 ACJ 803, 2009(1) PLJR 443, (2009)5 SCC 112.

18. Learned counsel for the respondents no.1 and 2 has submitted that the judgment and award impugned is duly substantiated with the facts emerging out from the record. The burden of half share inflicted against the Insurance Company of Truck bearing Registration No. BR06G-1748 had already been discharged while the appellants, instead of making payment, have invented a new methodology to ward off the mandate of judgment and award impugned. So submitted that the appeal is fit to be dismissed.

19. It has been submitted on behalf of respondent no.4, Insurance Company substituting the owner of the truck bearing Registration No. BR06G-1748 that appellants have got no legal, genuine ground to challenge the verdict, more particularly, having a conclusive finding by the learned Tribunal based upon sound reasoning. Furthermore, it has been submitted that at the stage of filing claim petition, the Respondent No.1 and 2/Claimants were aware with the facts that at the time of accident the vehicle (bus) was not insured and on account thereof, it will be a herculean task in getting the amount from the owner of the bus and that happens to be the reason behind that they have deflected from the narration of the Fard-e-beyan which was recorded by one of the passengers. Furthermore, it has also been submitted that the aforesaid document that means to say, FIR of Bathnaha PS Case No. 79/2006 is fully relied upon and the same is evident not only from pleading rather from the exhibits which, the claimant had brought up on record during course of trial. Therefore, it has also been submitted that the learned Tribunal have rightly identified the quantum to be shared by both the tortfeasors half and half.

Also relied upon 2009 (1) PLJR 443, (2009)5 SCC 112.

20. During course of trial altogether five witnesses have been examined on behalf of respondents no. 1 and 2/claimants, out of whom AW-1, Ruby Devi, the claimant herself, AW-2, Arun Rai, AW-3, Kamlesh Thakur, AW-4, Ram Pratap Ram and AW-5, Anu Jha. Right from AW-2 to AW-5, none had deposed over factum of manner of accident. They happen to be on different footing, that means to say, over the source of income, age of the deceased. AW-1 is the wife/one of the claimants. She had narrated that on 20.06.2006 her husband proceeded over the bus no. BR30P-2289. A truck coming from opposite side bearing no. BR06G-1748 which was being driven in rash and in negligent manner, came and dashed against the bus on account thereof, so many passengers got injuries including her husband, Sanjay Kumar who died out of the injuries. During cross-examination, she had stated that she had not seen the occurrence. But in para-10 she had stated that on account of collision in between bus and truck, her husband sustained injury who later on succumbed.

Therefore, there happens to be absence of substantial evidence whereupon an inference could be drawn conclusively.

21. At the other end, only Appellant no.2 came as a witness on behalf of his owner who had stated that he possesses driving license. He had further admitted that he happens to be accused in Bathnaha P.S. Case No. 79/2006 along with driver of truck. Then he deposed that at the time of accident, he was driver of bus bearing Registration no. BR30P-2289. He was driving the bus in moderate speed, cautiously and diligently.

When he reached near Rampur Inerva, he stopped the bus at left side of road for boarding/de-boarding of the passengers. At that very moment a truck bearing Registration No. BR06G-1748 came rashly and negligently and dashed against his bus on account of which passengers sustained injuries. He had further asserted that there was no negligence on his part rather it was truck the offending vehicle which was responsible and so, the proprietor of the offending vehicle is responsible to carry burden exclusively.

During cross-examination, had denied the suggestion that bus was being driven by him in negligent manner. However, his evidence is found contrary to the pleading. No other papers have been made an exhibit to infer that the truck in question was offending vehicle.

22. From Ext-No.1, it is evident that informant, Hari Krishna Ranjan, one of the injured passengers, had categorically detailed the event wherein he identified the driver of the bus to be rash and negligent and in likewise manner, the driver of truck ultimately, the bus and truck collided. Ext-2 is the charge-sheet wherefrom it is apparent that driver of both the vehicles happen to be accused. The other documents are not at all relevant on the present issue as death is out of controversy.

23. From nature of respective pleadings as well as evidences, it is evident that it happens to be a case of collision of two vehicle and as the claimants happen to be third party, as such, it could be treated as composite negligence. Being it a case of composite negligence, the only point now for determination is whether owner of one of the vehicles has got choice to ask for apportionment according to his desire?

24. In the case of