ANDHRA MARINE EXPORTS P LTD Vs. P RADHAKRISHNAN

JUDGEMENT

(1.) The proceedings which have come up to this Court arise out of an accident. which took place on 6-5-1978 at about 11:20 a.m. or 11:40 a.m. and which involved the bus belonging to the Kattabomman Transport Corporation Ltd. hereinafter referred to as the Transport Corporation, and the van belonging to Andhra Marine Exports Private Ltd., hereinafter referred to as the Van owners. The van was insured with the United India Fire and General Insurance Co., hereinafter referred t c) as the Insurance Company. One A Pathrose was the driver of the van. One Natarajan was the driver of the bus. P. Radhakrishnan was a passenger in the bus. We will presently come to the questions to the nature of and the manner in which the accident took place and as to who is to he held culpable for the accident. In the accident, Natarajan, the driver of the bus, and another passenger in the bus died at the spot. P. Radhakrishnan sustained injuries, the details of which we will have occasion to refer to in the course of this judgment. P. Radhakrishnan laid M. A. C. P. No. 14 of 197 before the Subordinate Judge, Nagarcoil, claiming, compensation of Rs. 15000 for the injuries sustained by him, and under other heads. In that petition, the Transport Corporation wits the first respondent the Van operator, the second respondent the driver of he \an, the third respondent and the Insurance Company the fourth respondent. The Transport Corporation laid O. S. 90 of 1977 on the file of the Subordinate Judge, Padmanabhapuram, claimed, a sum Of Rs. 31,439-18, for damages sustained by the bus in the accident. In that suit, the driver of the van was the first defendant; the Van owners, the second defendant and the Insurance Company, the third defendant. The Subordinate Judge, Nagarcoil, considered the claim for compensation by P. Radhakrishnan in M. A. C. P. 14 of 1977 and awarded a total compensation of Rs. 10,250, against the van owners, the driver of the van and the Insurance Company and the Transport Corporation was exonerated from the claim, C. M. A. 106 of 1979 has been preferred by the Van owners and the driver Of the van, and the respondents therein are P. Radhakrishnan and the Insurance Company. C. M. A. 25(S of 1979 has been preferred by the Van owners along with the Insurance Company and the respondents therein are P. Radhakrishnan and the Transport Corporation. O. S. 90 of 1977, after trial by the Subordinate Judge, Padmanabhapuram, culminated in it decr in favour of the 'Transport Corporation as prayed for with costs. As against the judgment and decree in 0. S. 90 of 1977, A.S. 77 of 1980 hits been preferred by the driver of the van and the van owners, and the respondents therein are the Transport Corporation and the Insurance Company; and A. S. 98 of 1980 has been preferred by the Van Owners and the Insurance Company and the respondents therein are the Transport Corporation and the driver of the van.

(2.) The parties being same and the in a in question involved being common to all the parties, submissions were made-by the respective counsel in common and we are obliged to deal with the matter by a common judgement. Both in M. A. C. P. No.14 of 1977 and in 0. S. 90 of 19"," 1 7 the courts below have held that the accident occurred on account of the rash and negligent driving of the van.

(3.) The primary question that comes up for consideration before us is as to who was responsible for the accident. Mr. T. S. Rangarajan, and Mr. P. Ananthakrishnan Nair, learned counsel appearing for the appellants did make an attempt to dislodge the findings rendered by the Courts below on this question. But, we must point out that these attempts proved a futile process. In M. A. C. P. 14 of 1977 alone we find that a contention seemed to have been raised that it could be a case of contributory negligence. The contention regarding contributory negligence is an obvious misconception. The claimant, the injured P. Radhakrishnan was a passenger in the bus belonging to the Transport Corporation. When a person is injured without any negligence on his part, but as a result of negligence on the part of the other person or as a result of the combined negligence of two other persons, it is not a case of contributory negligence. The term contributory negligence squarely and solely applies to the conduct of the claimant alone. If the claimant is built of an act or omission, which has materially contributed to the accident and the resultant injury and damages, the matter comes within the concept of contributory negligence and courts are enjoined to apportion the loss between the parties as the facts and circumstances may justify. In the instant case, by no stretch of imagination, it is possible to state that P. Radhakrishnan, a passenger simpliciter in the bus, was guilty of any act or omission which materially contributed to the accident and the resultant injury and damages. We also do not find any plea of contributory negligence, specifically put forth by the defendants in 0. S. 90 of 1977. The defendants in the suit have chosen to put forth the blame solely arid wholly on the driver of tire bus. We find that this principle of contributory negligence hits to be totally eschewed with regard to M. A. C. P. 1-4 of 1977. Now we have to find out as to on account of whose rashness arid negligence, the accident occurred. Here, learned Counsel for the appellants advanced arguments that the driver of the bus was rash and negligent either to say that the accident occurred oil account of the rash and negligent driving by the driver of the bus or at least the accident must have Occurred due to the composite negligence of both the drivers, When the accident occurs and the resultant injuries and damages flow without any negligence on the part of the claimant but as a result of the negligence oil the part of two or more persons, it is a case normally styled in le-al parlance as composite negligence and in the language of Pollock (Torts 15 th Edition) "Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can Sue. He is entitled of course, within the limits set out by the general rules as to remoteness of damage to Sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he cannot recover in the whole more than his whole damage." This theory of 'composite negligence' could riot be availed of at all by the appellants in the civil miscellaneous appeals it) exonerate themselves from the claim in M. A. C. P. 14 of 1977, because the choice is that of the claimant to proceed against one or both of the negligent persons, assuming that both were negligent. The principles of composite negligence are, where more than one person are responsible in the commission of the wrong-that the person wronged has a choice of proceeding against all or anyone or more than one of t he wrong doers. Every wrong doer is liable for the whole damage if it is otherwise made out and it does not lie in the mouth of one wrong doer to say 'Though I am also responsible, yet, the other man was also equally responsible for the wrong and on this basis he cannot avoid the liability to the person wronged. But, on an analysis of the materials placed in the case, we are firm in our opinion that the accident occurred solely due to the rash anti negligent driving of the van by its driver and there is no question of composite negligence at all.