P.D. Mulye, J.
1. This judgment shall also govern the disposal of L.P.A. No. 8 of 81 (Abdul Majeed and Anr. v. Rehana and Ors.) as both these appeals, though filed by different parties, arise out of the same accident and the same having been filed against the combined order dated 18-2-81 passed in M.A. No. 142 of 1976 (Abdul Mazeed and Anr. v. Rehana and Ors.) and M.A. No. 132 of 1976 (Rehana v. Abdul Mazeed and Ors.) arising out of Claims case No. 19 of 1974, by a single Judge of this Court.
2. The Letters Patent Appeal No. 6 of 1981 is filed by the claimant for enhancement of compensation from Rs. 35,000/- to Rs. 50,000/- and also for fastening the liability on the owners & driver of tempo number MPO 9501 as also on the Insurance Company with which the said tempo was insured, for their negligence on the ground that this was a case of composite negligence. Letters Patent Appeal No. 8 of 81 is filed by the owner and driver of tempo number MPO-3983 for holding the owners and driver of the other tempo MPO-9501 also liable for compensation as also the New India Insurance Company Limited with which the said tempo was insured for their negligence on the ground that this was a case of composite negligence.
3. The facts giving rise to these appeals which are no longer in dispute and has also been found proved by the two Courts may be stated, in brief, thus. On the night falling between 23rd and 24th November, 1973 around mid-night, tempo No. MPO-3983 belonging to the appellant Abdul Mazeed and driven by Abdul Khalik collided with another tempo bearing No. MPO-9501 belonging to Babulal and Kishanlal and driven by Shankarlal. This accident took place on a cross-road of Jawahar Marg, Indore.' Rehana, a girl aged about 13 or 14 years was travelling in tempo No. MPO-3983. As a result of the collision between the two tempos, one approaching the main road and the other proceeding towards the main road, the tempo in which Rehana was travelling fell on one side and Rehana was trapped under it. She was removed to the M.Y. Hospital, Indore and from there to the J.A. Hospital Gwalior, from where she was discharged after a prolonged treatment on 9-1-1974. She had sustained injuries on her cervical cord and left leg.
4. The case of the claimant Rehana was that the driver of the tempo, in which she was travelling drove the vehicle negligently and in fast speed. The other tempo was at the same time coming from the Bombay Bazar side in high speed and dashed against the tempo in which she was travelling. As a result of the said accident she was permanently disabled. She, therefore, claimed compensation of Rs. 50,000/- against the owners and drivers of both the tempos as also the Insurance Companies with which the said tempos were insured.
5. The claim was contested by the other side.
6. The learned Member of the Tribunal, after considering the evidence and material on record came to the conclusion that the driver of tempo No. MPO-3983 was driving the tempo negligently as it had no lights and the driver did not take suitable precautions which a prudent driver did not take suitable precautions which a prudent driver should have taken. Thus the accident occurred due to his negligence and, therefore, the driver and the owner of that vehicle were liable for compensation. Looking to the nature of injuries and the permanent disability resulting there from the learned Member of the Tribunal awarded compensation of Rs. 35,000/- as just and reasonable. As the Insurance Company, namely the United India Fire & General Insurance Co. Ltd. was liable to indemnify the owner up to Rs. 10,000/- only, the learned Member of the Tribunal limited its liability to Rs. 10,000/- and it held the owner and driver of tempo No. MPO 3983 namely Abdul Majid and Abdul Khalik Jointly liable for the balance of Rs. 25,000/-. The learned Member of the Tribunal dismissed the claimant's claim against the owners and driver of tempo No. MPO 9501 as also the Insurance Company with which that tempo was insured.
8. Being aggrieved with the award the claimant Rehana filed M.A. No. 132 of 76 and the owner and driver of temp No. MPO-3983 filed M.A. No. 142 of 76 which were disposed of by a Single Bench of this Court as mentioned above, whereby it dismissed both the appeals. Hence these letter patent appeals.
8. The learned Counsel for the claimant Shri Rajpal mainly contended that both the Courts have committed an error of law in not holding that this was a case of composite negligence. He also submitted that looking to the nature of injuries resulting in permanent disability to the claimants, as has been found proved by both the Courts, the compensation of Rs. 35,000/-awarded being low deserves to be enhanced to Rs. 50.000/-. He also submitted that the two courts have committed an error of law in restricting the liability of the Insurance Company to the tune of Rs. 10,000/- only.
9. Shri Harbanssingh Oberoi learned Counsel for the owner and driver of MPO-3983, while opposing the claimant's claim for enchancement of compensation supported by the submission made by the learned Counsel for the claimants regarding the composite liability of the owners and driver of the other tempo MPO 9501 as also the Insurance Company with which the said tempo was insured.
10. So far as the quantum of compensation is concerned, the two Courts, after considering and assesing the evidence and material on record have reached a concurrent finding of fact that a sum of Us. 35,000/- is just and reasonable for which they have given reasons and consequently we see no valid ground to interfere with that finding as the learned Counsel was unable to convince us that the quantum of compensation requires any interference in this appeal as the same cannot be said to be too low or meagre.
11. So far as the other submission of the learned Counsel for the appellants that the accident occurred as a result of the composite negligence of the other tempo driver is concerned, after going through the evidence as also the finding of the two Courts, we do not find any force in this contention and consequently question of fastening liability on that court on the owners as also the tempo driver and that of the Insurance Company does not arise. This is purely a question of fact. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons it is not a case of contributory negligence, but is a case of what is styled as composite negligence. If due to the negligence of A and B, Z has been injured, Z can sue both A and B for the whole damage. There is a clear distinction between contributory negligence and what is termed as composite negligence. The term contributory negligence applies solely to the conduct of a plaintiff. It means that there has been an act or omission on his part, which has materially contributed to the damage. But in the case of composite negligence both the parties can be held liable for compensation. In the present case it does not appear that the driver of tempo number MPO-9501 had not exercised normal diligence and caution to avert the accident. The test is whether the driver could have averted the accident by exercising that care and diligence which ordinary cautious persons, put in similar circumstances would have done. Considering the facts of the present case the tempo driver of tempo No. MPO- 9501 as also the owners and the Insurance Company have been rightly exonerated.
12. The learned Counsel for the appellants further contended in both these appeals that as the United India Fire and General Insurance Co. Ltd. with which tempo number MPO-3983 was admittedly insured, having not called upon the owner of the said tempo to file the original insurance policy or themselves having not filed a copy thereof, the said Insurance Company ought to have been held liable to pay the entire compensation as has been awarded and not restrict the liability of that Insurance Company to the extent of Rs. 10,000/- only. This submission of the learned Counsel for the appellants deserves consideration, though the learned Counsel for the United India Fire and General Insurance Company, Shri N.C. Behl vehemently contended that this point was not taken before the learned Single Judge and consequently the same cannot be agitated in a letters patent appeal. He also submitted that the copy of the cover note regarding that insurance policy is already on record and consequently, according to the statutory provisions of Section 95(2) of the Motor Vehicles Act the liability to the tune of Rs. 10,000/-has been correctly fastened on the said Insurance Company and no interference therewith is called for.
13. It, no doubt, appears that this point was not specifically raised before the Single Bench. However, in our opinion, this being purely a question of law, the same can be considered in this appeal. Section 95 of the Motor Vehicles Act prescribes the minimum statutory limit regarding compensation and does not prohibit covering of risk of a higher amount. However, in the present case admittedly the Insurance Company has not produced the insurance policy and proved it, and merely on the basis of the cover note, which is merely placed on record, it cannot be inferred that the said insurance company had restricted its liability to the tune of Rs. 10,000/- only. The burden lay upon the Insurance Company to prove this fact which they have failed to do. There is no evidence adduced on behalf of the said Insurance Company to show and prove that under the said insurance policy their liability was only to the tune of Rs. 10,000/- in case of an accident and not beyond. It was for the Insurance Company to plead and prove the terms and conditions of the policy by which the said tempo was insured and that on that basis their liability was limited to the tune of Rs. 10,000/- per passenger. In these circumstances we are of opinion that the said Insurance Company is also liable for the full amount of compensation awarded to the claimants.
14. In the result both these appeals succeed partly to the extent that the United India Fire & General Insurance Co. Ltd., is also jointly and severally held liable to pay the entire compensation of Rs. 35,000/- along with Abdul Mazeed and Abdul Khalik, with interest at the rate of 9 per cent per annum from the of filing of the claim petition. The rest of the claim stand dismissed. However, considering the facts and circumstances of the case, parties are directed to bear their respective costs of both these appeals.