1. A ghastly incident resulting in the death of seven persons took place at about 2-45 P. M. on 3-51971 along Bangalore-Tumkur High way near Budihal Wage situated about 1% miles away from Nelamangala Town. A motor car bearing registration No. MIT 554 carrying Dine persons including the driver was coming from Tumkur to Bangalore. A lorry bearing registration No. MYO 3955 belonging to Hanji Shivarma was being driven from Bangalore to Tumkur. Near Budihal Village when the two vehicles were about to cross each other there was head-on collision. The middle front portion of the car collided with the middle front portion of the lorry just at the middle of the high way. Consequently seven persons out of nine persons who were in the car, suffered fatal injuries. Five of them died at the spot and two of them died at the hospital immediately after they were taken there. One of them was the driver of the car.
2. Seven petitions were filed before the Motor Accidents Claims Tribunal, Bangalore, by the persons who were entitled to claim compensation. The owner and the insurer of the car were impleaded as the parties. All the petitions were tried together. The Tribunal found that the incident in question took place on account of negligence an the part of the driver of the lorry and awarded compensation in all the cases. The amounts awarded by the Tribunal are given below:-
S1. No. Misc. (MVS) No. Name of the deceased Compensation awarded1. 141/71 V. Narayanaswamy Rs. 35,00*2. 144/71 Mir Ali Hussain Rs. 25,0001S. 170/71 Sai Baba Its. 25,00014. 171171 G. Govindaraju Rs. 9.000/.5. 172171 J. B. Thimme Gowda Rs. 20,0W1.6. 183171 B. M. RaShavendra Ra. 27,NW.7. 19172 Abdul Latif Rs. 45,0001.
The Insurer of the lorry, the Madras Motor and General Insurance Co., Ltd., was directed to pay Rs. 7,000/- out of the amount awarded in each of the cases referred to above except in Misc. (MVC) No. 13/72 in which it was asked to pay Rs. 8,000/-. The Tribunal further directed that the amounts awarded should carry interest at 5% per annual from the date of petitions till the date of payment.
3. Aggrieved by the awards passed by the Tribunal, below, Hanji Shivarma, the owner of the lorry and the Madras Motor and General Insurance Co., Ltd., filed appeals before this Court. It should be mentioned here that the appeals filed by them against the award passed in favour of the heirs of Mir Ali Hussain have been disposed of by this Court by a separate order. In these appeals we are concerned with the compensation awarded by the Tribunal in the other petitions.
4. Shri B. K. Ramachandra Rao,learned counsel for Hanji Shivarma the owner of the lorry, contended that the claimants had not established that there was negligence on the part of the driver of the lorry. In the alternative be contended that the Tribunal should have held that the incident took place on account of the negligence on the part of both the driver of the lorry and the driver of the car.
5. The car had been licensed to carry five passengers. On that fateful day, the car was carrying eight persons, in addition to its driver. It was an Ambassador car. All the nine persons, who were travelling in the car, were adults. Some of them were stated to be bulky. Five persons were sitting in the rear seat and four persons including the driver were sitting in the front seat. At the point where the occurrence took place, there was a curve, P. Ws. 2 and 4 are the only survivors among those who were travelling in that car. P. W. 2 has stated in the course of his evidence that just before the occurrence the car was being driven on the left side of the road and the lorry was coming from the opposite direction keeping to the left side of, the road. All of a sudden within a few seconds there was a collision between the two moving vehicles. P. W. 4 the other surviving passenger of the car has also stated that just before the occurrence both the car and the lorry were keeping to the left side of the road and that the incident in question took place all of a sudden. He has further stated as follows:-
'. . . The front portion of the lorry dashed against the front portion of our taxi. The middle portion of the lorry hit the middle portion of our taxi.'
R. W. 1 the driver of the lorry has stated that he was driving the lorry on the left side of the road just before the incident took place and the incident took place all of a sudden. No substantial period of time could have elapsed between the time when either of the drivers saw the other vehicle and the moment of collision. From these facts, which are fairly established, it has to be inferred that the incident took place on account on the negligence on the part of both the drivers of, the lorry and the car. It is true that, as observed by Lord Broken head in the case of, the Volume, (1922) 1 AC 129, the mere fact that a collision has occurred on account of the blameworthy conduct of two vehicles. does not necessarily imply that the loss must automatically be distributed between the parties in the same proportion. But in the instant case both of them were equally responsible for the incident in question, since there is no evidence before the Court as to whether any of them could have by acting properly avoided the incident.
6. It is no doubt true that the persons who died (excluding the driver) on account of the incident had engaged the taxi in which they were travelling. That circumstance would not in any way disentitle the claimants to the compensation merely because the driver of the car was also negligent since it is not established in this case that they had control over the driving of the car and that the driver of the car acted as their agent. In fact the driver of the car was in the position of an independent contractor. The principle on which reliance was placed on behalf of ' the appellants, which was popularly known as the doctrine of identification, is no longer considered as good law, In Mills v. Armstrong, ((1888) 13 AC 1) popularly known as the Bemina case, the doctrine of identification which had been followed in Thorogood v. Bryan, ((1849) 8 CB 115) was given a go by. In the Bemina case the collision having occurred between the steam-ships, Bushire and Bemina through the fault or default of the masters and crews of both, two persons on board the Bushire, one of the crew and a passenger, neither of whom had anything to do with the negligent navigation, were drowned. The representatives of the deceased having brought in the admiralty actions in persona against the owners of, the Bemina for negligence under Lord Campbell's Act, it was held by the House of Lords that the deceased persons were Dot identified in respect of the negligence with those navigating the Bushire and that their representatives could maintain the actions and could recover the whole of damages.
7. In view of the aforesaid decision, we hold that the six passengers who died on account of the injuries sustained by them at the time of the incident are entitled to' claim compensation in equal proportions from the owner, driver and the insurer of the car and from the owner, driver and the insurer of the lorry in the circumstances of the case. Our view receives support from the decision of the Court of Appeal in France v. Parkinson, (1954 (1) M7LR 581). Summarising the decision in France v. Parkinson, the learned Editor of the Fifteenth Edition of Salmond on Torts has observed at page 704 as follows:.
'If a taxi-cab hired by the plaintiff comes into collision with another vehicle by the negligence of both the' drivers, and the plaintiff is hurt, he can recover damages not only from his own driver but also from the other.'
It was argued by Shri R. Narayanan that the insurer of the lorry was not responsible to pay compensation because the lorry was at the relevant point of time being driven Sp by R. W. 2 Krisbnappa who wag working as either conductor or cleaner in the lorry and who had no licence to drive a lorry. A similar argument was addressed before the Tribunal below by the insurer of the lorry.The Tribunal rightly rejected it . R. W. I Giriyappa has given evidence in the case. He has stated that he was working as a lorry driver, that the owner of the lorry had appointed him, that he had a licence to drive the lorry and that he was driving the lorry at the time when the incident took place. He has further stated that he ran away from the place of occurrence as he was afraid of persons nearby attacking him. R. W. 2 Krishnappa, who according to the insurer was the driver of the lorry at that time, has stated that he was not driving the lorry when the incident took place. He has also stated that lie does not know how to drive a lorry. It is no doubt true that the police instituted a criminal case against R. W. 2 Krishnappa because he was present at the place of the incident, but the said case ended in his acquittal. Neither P. W. 2 nor P. W., 4 who was a passenger in the car says that R. W. 2 Krishnappa was driving the lorry. There is no other reliable evidence before the Court in support of the contention urged on behalf of the insurer. No reliance can be placed by the insurer on the news item appearing in the English-daily, 'Indian Express' stating that a cleaner or conductor was driving the lorry at the time of the incident as the insurer has not examined the person who contributed the report to the newspaper as a witness in this case. It is no doubt true in some claim petitions before the Tribunal it was stated that R. W. 2 Krishnappa was driving the lorry at the time of the incident. None of the claimants was present at the scene of occurrence. Apparently they made the said statement in the course of their claim petition on the basis of the prosecution instituted by the police against him in the criminal Court. To these circumstances, we bad that R. W. I who was a licenced driver was driving the lorry at the time of the incident. Hence We reject the contention urged on behalf of the insurer of the lorry.
8. Sri Suryanarayana Rao, learned counsel for the insurer of the car, argued that the insurer of the car would not be liable to pay compensation as the car was being used for a purpose other than the purpose for which it had been licenced. He contended that the owner of the car was entitled to carry five passengers only and since eight passengers were being carried, it had to be held that the car had been used for a purpose for which it was not licenced and that therefore the insurer was not liable to pay any compensation. We do not think that there is any substance in this contention. Under the permit issued under the Motor Vehicles Act, the owner, of the car was entitled to carry passengers. Accordingly the passengers were being* carried in the car at the time of the incident. So it cannot be said that the car was being used for a purpose different from the one for which it had been licenced. Merely be-1 cause there was over-loading, we cannot say that the car was being used for a different purpose. This view is supported by the view expressed in the case of Kesavan Nair v. State Insurance Officer, ((1971) ACJ p. 219 (Ker)). The contention urged on behalf of the insurer of the car also fails.
9. The next question relates to the amount of compensation to which the claimants are entitled. At the time of the hearing, the learned counsel for the claimants stated that the amounts of compensation awarded in their favour might be fixed at the following amounts:-
S1. No. Misc. (MVC) No. Name of the deceased Compensation amount.1. 141/71 V. Narayanaswamy Rs.20,000/-2. 170/71 Satbaba Rs.12,000/-3. 171/71 G. Govindaralu Rs.9,000/- 4. 172/71 J. B. Thimmegowda Rs.12,000/-5. 183/71 B. M. Baghavendra Rs.12,000/-6. 19/72 Abdul Latif Rs.20,000/-
They have also stated that interest at 5% per annum from the date of claim petition might be awarded.
10. Sri B. K. Ramachandra Rao, learned counsel for the owner of the lorry, and Sri S. Gurusettappa, learned counsel for the owner of the car, submitted that the amounts now claimed by the learned counsel for the claimants are reasonable and that an order may be made accordingly. We have also been taken through the evidence bearing on the above question. We are of the view that the sums now claimed by the learned counsel for the claimants. are just and reasonable. We, therefore, modify the awards passed by the Tribunal below and fix the compensation accordingly in substitution of the compensation awarded by the Tribunal.
11. The insurer of the lorry, the Madras Motor and General Insurance Company Limited, and the insurer of the car, the New India Assurance Company Limited, shall pay the amounts payable to the claimants equally.
12. The Madras Motor and General Insurance Company Limited shall pay the following sums:
S1. N,.).S.No Misc(MVC)No Name of the deceased compensation amount.1. 141/71 V. Narayanaswamy Rs. 10,0001.2. 170/71 Saibaba Rs. 6,0001.S. 171171 G. Govindaralu Rs. 4,5001.4. 172/71 J. B. Thimmegowda Rs. 6,0001.5. 183/71 B. M. Raghavendra Its. 6,0001.6. 19/72 Abdul Latif Rs. 10.000/.
These sums shall carry interest at 5To per annum from the date of the petition before the Tribunal till day of payment.
13.The insurer of the car. the New India Assurance Company Limited shall pay the following sums:
S. No. Misc(MVC)NO Name of the deceased Compensation amount1. 141/71 V. Narayanaswamy Rs. 10,000/- 2. 170/71 Saibaba Rs. 6,000/- 3. 171/71 G.Govindaraju Rs. 4,500/-4. 172/71 J.B.Thimmagowda Rs. 6,000/-5. 183/71 B.M.Raghavendra Rs. 6,000/-6. 19/72 Abdul Latif Rs. 10,000/-
These sums shall carry interest at 511/,) per annum from the date of the petition before the Tribunal till date of payment.
14. It is stated that Hanji Shivanna, the owner of the lorry, has deposited a sum of Rs. 14,000/- before the Tribunal in Misc. (MVC) No. 141/71, pursuant to an interim order passed by this Court. After the amounts are deposited by the insurers before the Tribunal below, the amount deposited by Hanji Shivanna in Misc. (MVC) 141/71 shall be refunded.
15.These appeals are accordingly disposed of. No costs both in this Court and before the Tribunal.
16. Order accordingly.