A.P.S.R.T.C. & ANR. Vs. K.Hemalatha & Ors. [2008] INSC 713 (28 April 2008)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITON
CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C) Nos. 10950-10953 of 2005)
A.P.S.R.T.C. & Anr. ...Appellants Versus K. Hemalatha & Ors. ...
Respondents
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in these appeals is to the judgment of a learned Single Judge
of the Andhra Pradesh High Court disposing of several appeals filed under
Section 173 of the Motor Vehicles Act, 1988 (in short the `Act'). Appeals were
filed 1
by the claimants as well as the present appellant-Corporation and its
functionaries. By the impugned judgment the High Court partly allowed the
appeal filed by the claimant while dismissing the appeal filed by the
appellant-Corporation. One K. Lingam lost his life purportedly in a vehicle
accident. His widow and the minor children claimed compensation.
Similarly his widow Smt. K. Hemlatha also claimed compensation for about
Rs.8,00,000/- while the injured claimant in respect of the same accident
claimed compensation of Rs.1,00,000/-. It was the case of the claimants that on
19.3.1998 the deceased and injured claimant in O.P. No.878 of 1998 were
proceeding on motor bike bearing No. AP.10J 5350 towards Yadagirigutta and when
they reached the RTC bus depot at Yadagirigutta, bus bearing No. AP 9Z 3972
belong to APSRTC, came from back side and dashed the motorcycle. In the said
accident, the deceased and claimant suffered grievous injuries. At first instance,
both were admitted in Government Hospital, Bhongir and thereafter they were
shifted to Gandhi Hospital, Secunderabad. Considering the serious condition of
the 2
deceased he was shifted to CDR Hospital, Hyderabad, where he succumbed to
injuries on 24.3.1998. On a complaint lodged to the police, a case in Crime
No.16 of 1998 was registered on the file of the Police Station, Yadagirigutta.
It was the further case of the claimants that the deceased was a Class-I
contractor and was an income tax assessee and was doing high magnitude civil
contracts. Pleading that due to sudden and untimely death of the deceased, they
lost dependency, they claimed compensation which included non- pecuniary
damages on account of loss of estate, and loss of consortium. So far O.P. No.
878 of 1998 is concerned, the same was filed by the wife of the deceased who
was also injured in the same accident, claiming compensation on account of
medical expenditure, pain and suffering and disability. The said claim was
resisted by the appellant Andhra Pradesh State Road Transport Corporation (in
short the `Corporation') by filing counter affidavit before the Tribunal. It
was the case and it was their specific case that the bus did not hit the motor
bike. Further, it was their case that on seeing the speeding bus the deceased
himself got 3
puzzled and skidded off the road; as such, the deceased and claimant suffered
injuries. Precisely, it was the case of the Corporation that the bus of the
Corporation did not hit the motor bike at all; as such, there was no negligence
on the part of the driver of the bus of the Corporation, to claim compensation
from it.
3. The Tribunal in the two claim petition framed issues.
After taking note of the evidence on record, it was held that the deceased
was aged of 41 years, his earning was about Rs.5,000/- per month and after
deducting 1/3rd for personal expenses the contribution to the family was around
Rs.3,400/- p.m. The annual contribution was Rs.40,800/.
After applying multiplier of 11, compensation of Rs.4,48,800/- was awarded.
Additionally, a sum of Rs.70,000/- for medical expenses, transportation
charges, funeral expenses and the like was awarded. In other words in respect
of claim for the death of the deceased Rs.5,18,800/- was fixed as the amount of
compensation. But since the Tribunal held that there was contributory
negligence, 1/3rd deduction was made. Interest 4
at the rate of 12% was awarded, from the date of claim. In the petition in
respect of injuries a sum of Rs.25,000/- was awarded but after making deduction
of 1/3rd the amount was fixed as Rs.16,666/- together with interest at the rate
of 12% per annum.
4. Both the claimants and the Corporation filed appeal. As noted above the
appeal filed by the claimant was partially allowed while the appeal filed by
the Corporation was dismissed. Primarily the High Court came to hold that there
was no question of any contributory negligence.
5. In support of the appeal, learned counsel for the appellant submitted
that the High Court has misread the evidence on record. The Tribunal has
referred to the evidence on record to conclude that the deceased was also
partially responsible for the accident and therefore it clearly held that there
was contributory negligence. However, the proportion of 1:2 i.e. between the
deceased and the Corporation, as fixed by 5
the Tribunal, was not correct. It is also pointed out that the rate of interest
as awarded is extremely high.
6. Learned counsel for the respondent on the other hand supported the
judgment of the High Court.
7. To determine the question as to who contributed to the happening of the
accident, it becomes relevant to ascertain who was driving his vehicle
negligently and rashly and in case both were so doing who were more responsible
for the accident and who of the two had the last opportunity to avoid the
accident. In case the damages are to be apportioned, it must also be found that
the plaintiff's fault was one of the causes of the damage and once that
condition is fulfilled the damages have to be apportioned according to the
apportioned share of the responsibility. If the negligence on the plaintiff's
part has also contributed to damage this cannot be ignored in assessing the
damages. He can be found guilty of contributory negligence if he ought to have
foreseen that if he did not act as a reasonable, reasoned man, he might be hit
6
himself and he must take into account the possibility of others being careless.
8. The Tribunal has noticed that the deceased was driving vehicle at a high
speed with a view to attend the marriage function. Manner of the accident as
deposed by the claimant's witnesses indicate that the deceased was partially
responsible for the accident. The High court was wrong in holding that the
deceased had not contributed to the accident and there was no contributory
negligence. Taking into account the evidence of the witnesses it can be
certainly said that there was contributory negligence. The proportion can be
fixed at 1:4. From the compensation as awarded a sum of Rs.1,00,000/- with round
figures needs to be deducted.
Therefore, the compensation is fixed at Rs.4,18,800/-.
Considering the date of the accident, the rate of interest should be 8%.
7
9. In an accident involving two or more vehicles, where a third party (other
than the drivers and/or owners of the vehicles involved) claims damages for
loss or injuries, it is said that compensation is payable in respect of the
composite negligence of the drivers of those vehicles. But in respect of such
an accident, if the claim is by one of the drivers himself for personal
injuries, or by the legal heirs of one of the drivers for loss on account of
his death, or by the owner of one of the vehicles in respect of damages to his
vehicle, then the issue that arises is not about the composite negligence of
all the drivers, but about the contributory negligence of the driver concerned.
10. '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 wrong doers, it is said that the person was injured on account
of the composite negligence of those wrong-doers. In such a case, each wrong
doer, is jointly and severally liable to the injured for payment of the entire
damages and the injured person has 8
the choice of proceeding against all or any of them. In such a case, the
injured need not establish the extent of responsibility of each wrong-doer
separately, nor is it necessary for the court to determine the extent of
liability of each wrong-doer separately. On the other hand where a person
suffers injury, partly due to the negligence on the part of another person or
persons, 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 stands reduced
in proportion to his contributory negligence.
11. 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 9
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.
12. The above position was highlighted in T.O. Anthony v.
Karvarnan & Ors. [2008(3) SCC 748].
13. Appeals are allowed to the aforesaid extent. The proportion in which the
payment to the claimants have to be made shall be the same as was fixed by the
Tribunal.
..............................
...J.
(DR. ARIJIT PASAYAT) 10 .................................J.
(P. SATHASIVAM) New Delhi:
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