REPORTABLE 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

JUDGMENT

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

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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

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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

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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

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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

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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

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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%.

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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

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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

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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)

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……………………………J. (P. SATHASIVAM)

New Delhi: May 16, 2008

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