(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the award of Rs.2,30,840/- passed in MCOP.No.125 of 2021, dated 26/04/2012 on the file of the Motor Accidents Claims Tribunal-cum-Sub Judge, Uthamapalayam and pass such further or other orders.)

1. This Civil Miscellaneous Appeal is preferred against the award made in MCOP No.125 of 2011, dated 26/04/2012 on the file of the Motor Accidents Claims Tribunal-cum-Subordinate Judge, Uthamapalayam.

2. The brief case of the claimant are as follows:-

                  On 24.09.2010 at about 08.15 a.m, the petitioner was travelling in the Mini Lorry bearing Registration No.TN-18-B-1990 which belonged to the 3rd respondent. When the Mini Lorry was nearing Rajangam house, at that time, Mini Bus bearing Registration No.TN-67- Z-1521 belonged to the 1st respondent, driven by its driver in a rash and negligent manner in the same direction and dashed against the back side of the Mini Lorry. Due to which, the petitioner sustained grievous injuries all over the body particularly on her both legs. Immediately, she was taken to Government Hospital, Uthamapalayam and thereafter, she was referred to Theni Ka.Na.Villakku Medical College and subsequently, she was referred to Madurai Government Rajaji Hospital, where she took treatment as inpatient between 24.09.2010 and 04.05.2011. Over the occurrence, a case in Crime No.449 of 2010 was registered by the Rayappanpatti Police Station, for the offences under Sections 279 and 337 IPC against the 1st respondent Mini Lorry Driver.

3. At the time of accident, the petitioner was aged about 30 years and she was an agricultural coolie and earning Rs.7,700/- per month. Claiming compensation of Rs.10,00,000/- for the injuries sustained in the accident, she filed a claim petition before the Tribunal.

4. The second respondent, Oriental Insurance Company filed a counter denying the entire allegation contained in the claim petitions; at the time of accident, the mini bus was not having any valid permit and the driver of the mini bus does not possess a valid driving license. It is further submitted that the claimant was travelled in the mini lorry as an un-authorised or gratuitous passenger and so, it comes under the violation of policy condition.

5. The 4th respondent Insurance Company also filed a counter affidavit stating that the accident took place due to the rash and negligent driving of the driver of the mini bus and at the time of the accident, the driver of the mini lorry does not possess any valid license. So, they are not liable to pay any compensation and prayed for dismissal of the claim petition.

6. Before the Tribunal, on the side of the claimant, 2 witnesses were examined as P.W.1 to P.W.2 and 5 documents were marked as Exs.P1 to P5. On the side of the Respondents, no oral or documentary evidence was adduced.

7. After considering the material evidence and records, the Tribunal has awarded compensation of Rs.2,30,840/- together with interest at the rate of 7.5% per annum and directed the second respondent Oriental Insurance Company to deposit the same within a period of 4 weeks before the Court and dismissed the claim petition as against the respondents 3 and 4.

8. Aggrieved over the order of the Tribunal, this Civil Miscellaneous Appeal has been preferred by the Appellant Insurance Company, disputing the manner of accident and their liability to pay the compensation.

9. This Court considered the rival submission of the learned counsel appearing on either side and perused the materials available on record.

10. On perusal of Ex.P1 shows that the date occurrence viz., on 24.09.2001 at about 8:15 p.m. the mini bus bearing Registration No.TN 62 Z 1521 and mini lorry bearing registration No.TN 18 B 1390, which was proceeded in front of the mini bus, were driven by both drivers in a rash and negligent manner in order to overtake each other at that time, the mini lorry driver who was carrying passengers in order to avoid hitting the hens on the road, applied, sudden break, without expecting the same, the mini bus dashed against the right side of the mini lorry, in this effect, the respondent sustained crush injuries. The complainant Kumaresan called an ambulance and send the petitioner to Government Hospital for treatment. The injured was examined as P.W.1 stated that the negligence was on the part of the first respondent, however she also admitted in the cross examination that the driver of the mini bus had driven the vehicle in a negligent manner, which clearly proves that the driver of the mini lorry also contributed the accident. However, it is established that in order to avoid hitting the hen, applied sudden brake, and the vehicle belong to the insured failed to maintain a safe distance driven in a rash and negligent manner hit the mini lorry, as a result the claimant sustained injuries. It is further noted that the FIR was registered only against the insured vehicle, and no complaint was filed against the mini lorry. However, it is proved by oral and documentary evidence that both the drivers are contributed to the accident, due to their negligent act, they are liable to pay compensation. The learned counsel for the appellant relied upon the following judgments in supporting his case:

                  i. In New India Assurance Co Ltd., vs. Ashok Kumar Acharya and Ors [1994 SCC OnLine Ori 6 ; 1995 ACJ 189] the Orissa High Court has pointed out the difference between Contributory negligence and Composite negligence held as in para 5 - 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 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 those persons though in any case he cannot recover in the whole more than his whole damage.

                  ii. The Apex Court in Sri Krishna Vishweshwar Hede v. The General Manager, K.S.R.T.C [2008 (15) SCC 771], the Court held as that after detailed consideration of the evidence, the Tribunal held that both were liable and fixed the ratio of liability at 50% each. On the other hand, the High Court has modified the ratio by increasing the liability of appellant at 75% without much justification. On the facts and circumstances, we are of the view that the judgment of the Tribunal assessing the ratio of liability at 50:50 is proper and the High Court ought not to have interfered with it.

                  iii. The Apex Court in T.O. Anthony v. Karvarnan, [(2008) 3 SCC 748], the Court held as:

                  “6. “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 wrongdoers, it is said that the person was injured on account of the composite negligence of those CMA.(MD)No.739 of 2013 wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has 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 wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer 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 stand reduced in proportion to his contributory negligence.

                  7. 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 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”.

11. Taking into account the attendant circumstances, the evidence adduced on both sides and upon perusal of the documents on record, this Court fixed 30% contributory negligence on the part of the third respondent driver viz., mini lorry driver. Since the third respondent is the owner of the mini lorry vicariously held responsible for the act of his servant. It is also noted that the 3rd respondent's vehicle, is a goods carriage vehicle in which the claimant and others were permitted to travel in the vehicle, therefore, the 3rd respondent also violated the policy condition. However, the claimant is the third party and such circumstances do not affect the liability arising out of the act of the 3rd respondent, hence, the 4th respondent insurance company is liable to pay the compensation to the claimant and then recover the same from the owner of the vehicle.

12. As far as injuries, Ex.P2, wound certificates shows that the injury sustained by the claimant are grievous in nature. Disability certificate issued under Ex.P5, show that she is permanently disabled due to the accident. P.W.2, Dr.Vijay Kumar, issued the disability certificate, stated that due to the accident, the claimant lost her fingers on the left leg, and injured cannot walk. There was no movement on left leg. She is not able to walk from one place to another and need support of a person. The injured, was an agriculture coolie and now deprived of continuing her day-to-day work. The Tribunal awarded only just compensation and this Court find no reason to interfere with. In other aspects, this Court do not wish to interfere with the order of the Tribunal.

13. Accordingly, this Civil Miscellaneous Appeal is partly allowed, this Court fixed 30% contributory negligence on the part of the third respondent driver and the 4th respondent insurance company is liable to pay 30% of the compensation to the claimant and then recover the same from the owner of the vehicle/3rd respondent. The appellant/ 2nd respondent is directed to pay the compensation amount after deduction of 30% to the Claimant.

14. In the result, the Civil Miscellaneous Appeal is partly allowed. The award passed by the trial Court is modified and the Appellant/2nd respondent insurance company is directed to pay 70% of the award amount i.e., Rs.1,61,588/- and the 4th respondent/4th respondent insurance company is directed to pay 30% of the award amount ie., Rs.69,252/- to the 1st respondent/claimant along with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit of the amount, at the first instance, less the amount already deposited, if any, to the credit of M.C.O.P. No.125/2011 on the file of the Subordinate Court, Motor Accident Claims Tribunal, Uthamapalayam, within a period of eight weeks from the date of receipt of a copy of this order and thereafter, 4th respondent insurance company is directed to recover the same from the owner of the vehicle/3rd respondent in accordance with law. On such deposit, the 1st respondent/claimant is permitted to withdraw the same, less the amount already withdrawn, if any, together with proportionate interest and costs, by filing an appropriate petition before the Tribunal. No costs. Consequently, the connected miscellaneous petition is closed.