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The New Great Insurance Company of India Ltd. Vs. Baladeb Gahir and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 167 and 168 of 1973
Judge
Reported inAIR1976Ori201
ActsMotor Vehicles Act5, 1939 - Sections 110B
AppellantThe New Great Insurance Company of India Ltd.
RespondentBaladeb Gahir and ors.
Appellant AdvocateS. Basu, Adv.
Respondent AdvocateS. Miisra, Adv. No. 2 and ;B.K. Behura, Adv. in M.A. 167/73 and ;K.C. J. Rey, Adv. in M.A. 168/73
DispositionAppeals partly allowed
Cases Referred(Jamnagar Motor Transport Union (P.) Ltd. v. Gokaldas Pitamber
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........taking a wavy course, he should not have stopped his bus right at the culvert. the bus and the jeep drivers could, therefore, be made to share the responsibility for the accident on 50 : 50 basis.' in another case, namely, 1966 acc cj 42 (sc), (jamnagar motor transport union (p.) ltd. v. gokaldas pitamber's l. rs.), the supreme court held that where two buses grazed with each other and passengers sustained fatal injuries both the drivers were negligent. in that case, the two buses grazed with each other at a point on the road where it was narrow (19 feet), the maximum breadth of each of the vehicles being 8 feet. it was held that-'if each of these buses was running at a speed at which it could be properly kept under control no collision could have occurred. it is difficult to say.....
Judgment:

K.B. Panda, J.

These are two appeals filed under Section 110-D of the Motor Vehicles Act (hereinafter referred to as the Act). The appellant in both the appeals is the New Great Insurance Company of India Limited. Misc. Appeal No. 167 of 1973 is against the claimant Baldeb Gahir father of the deceased and others and Misc. Appeal No. 168 of 1973 is against the claimant Harachand Pandey, the injured and others. The two claim cases before the Motor Accident Claims Tribunal, Sambalpur (hereinafter referred to as the Tribunal) were heard analogously but two separate judgments were passed. As against those judgments, these two appeals have been preferred which were heard together as they arise out of the same incident and will be disposed of by this common judgment.

2. The facts not disputed are thus: The jeep ORS 9886 was proceeding from Bargarh on the National Highway towards Saria on 16-5-1969 carrying a marriage party. There were 10 persons in the jeep including the driver. A trolley was also attached to the same. From the opposite direction a truck bearing registration No. ORS 3361 was coming. It was then 1.30 a.m. The evidence is that the jeep was going at a high speed. The occupants of the jeep wanted the driver to slow down as a truck was coming from the opposite direction in high speed. The driver told them not to worry. As the two vehicles were crossing each other, their right side grazed as against each other and three persons sitting to the right side of the jeep were severely injured. One of the injured while being removed to the Bargarh hospital died on the way. His father is the claimant-respondent No. 1 in M. A. 167/73. The other one who was injured is the claimant-respondent No. 1 in M. A. 168/73.

3. Three of the occupants of the jeep gave evidence on behalf of the claimants. On behalf of the owner of the truck, one coming in the same gave evidence. The finding of the Tribunal in both the cases is thus:

'The above evidence of P. Ws. 1, 2 and 3 and O. P. W. 1 leaves no room for doubt that the accident took place at a place on the road which was 30 to 32 feet wide, on account of the rash and negligent driving by the drivers of the jeep ORC 9886 and the truck ORS 3361. Since the road was more than 30 ft. wide, the accident could easily have been avoided had not the drivers of the jeep and the truck been negligent. On consideration of the evidence of the eye-witnesses I find that the accident was caused by the rash and negligent driving of the truck ORS 3361 and the jeep ORC 9886.'

This finding has not been challenged. Mr. Basu, learned Counsel for the insurance company (appellant) advanced an alternative argument. Firstly his contention was that at the relevant time, the staututory liability of the insurance company (appellant) was to the tune of Rs. 20,000/-. In the instant case, the total liability fixed by the Tribunal against the appellant is Rs. 21,500/- and thus to the extent of the excess amount of Rs. 1,500/- the order is invalid. His second contention was that the finding being that the accident occurred due to the rashness and negligence of the drivers of both the vehicles, there should have been a reasonable apportionment of the compensation and the major liability should not have been placed on the appellant-insurance company with which the truck was insured. In fact, the learned Tribunal has granted compensation in the following manner. In the case of the claimant-father of the deceased, he granted total compensation of Rs. 17,400/- out of which he made the insurance company liable to the extent of Rs. 15,000/- and (for) the balance Rs. 2,400/-the owner of the jeep. In the other case, (M. A. 168/73) he held that the injured should be compensated to the tune of Rs. 8,000/-. Out of this, the liability of the insurance company (appellant) was fixed at Rs. 6,500/- and the balance of Rs. 1,500/- to be paid by the owner of the jeep.

4. Mr. Jagadeb Ray and Mr. S. Misra-2 appeared on behalf of the Orissa Co-operative Insurance Society (Respondent No. 4). They contended that the truck being a heavier vehicle should have slowed down seeing the jeep -- a lighter vehicle coming from the opposite direction. However, they could not cite any authority for the proposition that a heavier vehicle while seeing a lighter vehicle coming from the opposite direction should slow down. I think, both the contentions of Mr. Basu have enough force. Here the finding being that both the drivers were rash and negligent, it was the duty of the Tribunal to apportion the compensation. Instead of doing so he has saddled the appellant-company with which the truck had been insured with a greater liability. The question therefore is to determine the ratio of compensation between the jeep owner and the insurance company of the truck. Be it stated here that the insurance company with which the jeep had been insured though made a party, in the absence of policy, it has not been made liable to pay any compensation. The entire compensation has been shared between the owner of the jeep and the insurance company of the truck.

5. In a case reported in AIR 1974 Punj and Har 54, (Subash Chander v. State of Haryana), the liability in such circumstances has been fixed at 50 : 50. That was a case where a bus and a jeep coming from the opposite directions collided with each other while negotiating a culvert and certain persons were injured. It was held-

'The relative weights or sizes of the two vehicles would not however furnish us with any sound criterion for apportioning the liability over two drivers. I would not be far wrong if I were to say that a jeep would have only a one-third or one-fourth of the weight or size of bus. If this criterion were to be adopted, then the ratio in which the liability should have been apportioned should have been 20 : 80 or 25 : 75. I, however, feel that the weights and sizes of the vehicles should not determine the respective liabilities of the drivers of the two vehicles and that in the absence of any safer indications to go by, the two drivers could be held equally guilty. If the bus driver had seen the jeep taking a wavy course, he should not have stopped his bus right at the culvert. The bus and the jeep drivers could, therefore, be made to share the responsibility for the accident on 50 : 50 basis.'

In another case, namely, 1966 Acc CJ 42 (SC), (Jamnagar Motor Transport Union (P.) Ltd. v. Gokaldas Pitamber's L. Rs.), the Supreme Court held that where two buses grazed with each other and passengers sustained fatal injuries both the drivers were negligent. In that case, the two buses grazed with each other at a point on the road where it was narrow (19 feet), the maximum breadth of each of the vehicles being 8 feet. It was held that-

'If each of these buses was running at a speed at which it could be properly kept under control no collision could have occurred. It is difficult to say that only the driver of one of the buses was negligent while that of the other was not. The only reasonable conclusion is that drivers of both the buses were negligent'.

6. In the instant case, also there is no material to hold that the truck driver was more negligent or rash than the jeep driver. The evidence is that the jeep driver in spite of the caution given by the occupants was speeding up the jeep even when he found the truck coming from the opposite direction. In the circumstances, therefore, the only conclusion that could be drawn is that both the drivers were equally responsible and therefore the liability should be apportioned half and half. On that basis, the appellant will pay Rs. 8,700/- to the claimant-respondent No. 1 in M. A. 167/73 and Rs. 4,000/- to the claimant-respondent No. 1 in M. A. 168/73. The balance would be borne by the owner of the jeep (R. 2) in both the appeals.

7. In the result, the appeals are allowed partly. Parties will bear their own costs.


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