UNITED INDIA INSURANCE CO LTD Vs. MARIAMMA GEORGE

JUDGEMENT

(1.) The question of law involved in this case is as to whether the claimant is entitled to recover the entire amount of compensation from any one of the owners or insurers of the vehicles involved in a motor accident where two vehicles are involved and when the accident is caused due to composite negligence of drivers of both the vehicles. To be more precise the question is, when composite negligence of both drivers were found and when the Tribunal had apportioned the percentage of negligence among the two vehicles, whether a third party claimant is entitled to recover the whole amount of compensation from the owner or insurer of any one of the vehicles.

(2.) Brief facts of the case at hand is narrated hereunder. The 2nd respondent - Insurance Company - before the Tribunal is the appellant. The appellant is the insurer of a motor cycle which collided with a jeep. In the accident the pillion rider of the motor cycle died and claim petition was filed by his legal representatives / dependents. The 1st respondent before the Tribunal (6th respondent herein) is the owner cum rider of the motor cycle. Respondents 4 and 5 before the Tribunal (respondents 7 and 8 herein) are the driver and owner of the Jeep, respectively. The Jeep in question was not having any valid insurance policy as on the date of accident. In the criminal case registered with respect to the accident, both the drivers were made accused and charge sheeted for offences punishable under S.279 and S.304A of IPC. On appreciating the evidence on record, the Tribunal found that the accident occurred due to rash and negligent driving of both the vehicles by the respective drivers. The extent of negligence was apportioned between two vehicles at 50% each. Since the appellant / 2nd respondent was the insurer of the Motor Cycle, they were held liable to indemnify the owner of the motor cycle to the extent of 50%. Since there was no valid insurance for the Jeep, the respondents 4 and 5 before the Tribunal were held liable for payment of the balance 50%, they being the driver and owner of the Jeep. But following the decision of this Court in Sally Joseph v. Jose V. Jose, 2002 KHC 120 : 2002 (1) KLT 573 : 2002 (1) KLJ 68] the Tribunal had permitted the claimants to recover the entire amount from the appellant / 2nd respondent, and the appellant / 2nd respondent was permitted to recover 50% out of the total amount paid, from respondents 4 and 5. The appellant is challenging award of the Tribunal mainly on the ground that the Tribunal went wrong in directing the appellant to satisfy the total compensation, inspite of fixing 50% negligence on the driver of the Jeep.

(3.) The legal question arises for consideration is as to what is the extent of liability of a tortfeasors in a case of composite negligence. In the case of Sally Joseph (cited supra) a Division Bench of this Court observed that: