UNITED INDIA INSURANCE CO LTD Vs. NANDLAL

JUDGEMENT

(1.) THIS order shall also govern the disposal of MCC Nos. 716/07 to 739/07 as all the petitions are being filed against the order dated 30-8-2007, whereby this Court has disposed of M. A. No. 316/06 and also M. A. Nos. 2305/05, 2315/05, 2316/05. 2458/05, 2459/05, 2466/05, 2568/05, 3016/05, 3026/05, 3027/05, 3055/05, 3056/05, 3057/05, 3058/05, 3295/05, 3306/05, 3307/05, 3502/05, 3640/05, 3654/05, 3669/05, 30/06 and 247/06.

(2.) SHORT facts of the case are that in a Motor Accident which took place on 26-8-2003 and in which two vehicles i. e. a bus bearing Registration No. MP10-D-7444 and a truck bearing Registration No. MP46-H-0795 was involved. Number of persons filed the claim petition on account of injuries and also on account of death. All the claim petitions were decided by the learned tribunal vide order dated 12-9-2005 against which number of appeals were filed and all the appeals were disposed of by this Court vide order dated 30-8-2007 except m. A. No. 2903/05, which was disposed of vide order dated 28-6-2007 by the hon'ble Division Bench of this Court.

(3.) IN all the appeals in which MCC has been filed, relevant findings, relating to the liability of driver, owner and Insurance Co. of each of the vehicle was as under :-So far as findings of contributory negligence is concerned, it is evident that the drivers of both the vehicles died immediately after the accident. The best evidence which is available is the cleaner of the offending truck, who has seen the accident. From the passengers of the offending bus it is not expected that they have seen how the accident occurred. The Learned tribunal has also found that there was a pit and the driver also tried to save the bus from the pit. So far as claimants are concerned, since they were travelling in the bus and they were not the cause of accident in any manner, therefore, it was a case of composite negligence for them. After perusal of the evidence on record this Court is of the view that it is difficult for the Court to determine the percentage of negligence. In the circumstances the learned Tribunal committed error in deviating from the general principle and in apportioning the inter se liability of joint tortfeasors. It was not necessary for the claimants to implead respondent no. 3 as party. In view of the aforesaid position of law the findings of learned tribunal whereby the liability of respondents was apportioned in the ratio of 50% 50% is set aside and it is held that the claimants are entitled to recover the amount from any of the tortfeasors.