The New India Assurance Co. Ltd., Vs Smt. K. Latha

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.21.07.2022 PASSED IN MVC NO.4007/2020 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, MEMBER, PRL. MACT, BENGALURU, AWARDING COMPENSATION OF RS.13,59,600/- OUT OF THE DETERMINED COMPENSATION OF RS.16,99,500/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is by the insurer being aggrieved by the

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Judgment and award dated 21.07.2022 passed in MVC No.4007/2020 on the file of Chief Judge, Small Causes Court and Principal MACT, Bengaluru.

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Though the matter is listed for admission, with the

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consent of both sides, it is taken up for final disposal.

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The parties are referred to as per their rankings before the Tribunal.

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Brief facts of the case are that:

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On 27.10.2019 at about 10.40 a.m. deceased

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Rajashekariah K.S., was travelling in a car bearing registration No.KA-06-N-3698 on Bengaluru to Tumkuru NH-4 road, near 8^th mile Peenya flyover, the driver of a Canter lorry bearing registration No.KA-41-A-2740 parked

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the said vehicle over the flyover without signal or indication light and without taking any precaution. As a result, the car hit the said lorry, due to impact Rajashekariah K.S., sustained grievous injuries and while undergoing treatment he succumbed to the injuries.

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The claimants being his wife and children contended that the deceased Rajashekariah K.S., was aged about 65 years. He was in real estate business and

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earning Rs.25,000/per month. Claimants were

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dependant upon his earnings. With these reasons, prayed to award compensation of Rs.30,00,000/-.

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Respondent No.1 was the owner and respondent No.2, was the insurer of the offending lorry bearing registration No.KA-41-A-2740.

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Respondent Nos.1 and 2 filed their written statements denying the averments of the claim petition. Respondent No.2 in addition denied its liability to pay the compensation and it also contended that accident occurred due to negligence of driver of the car. It further contended that its liability is restricted to terms and conditions of policy of insurance. With these reasons prayed to dismiss the claim petition.

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Tribunal framed necessary issues.

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Claimants to substantiate their case examined two

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witnesses as PW1 and PW2 and marked Exhibits P1 to

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P16. Respondent examined one witness as RW1 and

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marked Exhibits R1 and R2.

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Tribunal on hearing both the parties and on appreciation of materials available on record held that accident occurred due to contributory negligence of driver of the lorry as well as the car in the ratio of 80:20. The Tribunal assessed age, income, multiplier and awarded

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following amount of compensation.

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SL. NO.	DESCRIPTION	AMOUNT
1.	Annual Income taken average of 3 years annual income
	3,93,312/- 4,31,955/- 4,15,957/- -------------- 12,41,224/- Less: tax Rs.13,176 13,176/- ------------- 12,28,048/- Divided by 3 4,09,349/-
2.	Deduction of 1/3^rdincome of the deceased towards personal expenses 4,09,349/- 1,36,449/- ------------ 2,72,900/-
3.	Compensation after

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	Multiplier applied 2,72,900x5	Rs.13,64,500/-
4.	Loss of consortium to wife, petitioner No.1	Rs. 40,000/-
5.	Loss of estate	Rs. 15,000/-
6.	Funeral expenses	Rs. 15,000/-
7.	Loss of Parental consortium to petitioners No.2 and 3	Rs. 80,000/-
8.	Medical bills	Rs. 1,85,000/-
	Total	Rs.16,99,500/-
	Less: 20% negligence attributed by the driver of the car	Rs. 3,39,900/-
	Total amount payable to the petitioners	Rs.13,59,600/-

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Tribunal deducted 20% of the compensation to be payable by the driver of the car and directed respondent to pay 80% of the said amount.

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Claimants have not challenged the said findings. However, insurer challenged the said findings.

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Learned counsel for the appellant/insurer vehemently contended that the accident occurred solely due to the negligence of the car driver. There was no negligence on the part of the lorry driver, as the lorry had been parked on the side of the road. The accident occurred during daylight, between 10:30 and 10:40 a.m. Hence,

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there was no question of switching on any indication light

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or otherwise signalling that the vehicle was under repair and parked. Although sufficient space was available on road to the right side of the lorry, but the car driver, by his negligent driving, hit the rear side of the lorry, resulting in the accident. It was further contended that the lorry driver was not at fault in any manner. However, the police unfortunately charge-sheeted both the lorry driver and the car driver in connection with the said accident. Considering the facts and circumstances of the case, it is evident that the entire negligence was of the car driver, and therefore, the Tribunal ought to have directed the car driver to bear the entire liability for payment of compensation.

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Learned counsel for the appellant further contended that the Tribunal had apportioned the liability in the ratio of 80:20 between the lorry and the car. It was submitted that the negligence of the lorry driver was minimal, whereas the major portion of negligence was attributable to the car driver. Therefore, the learned

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counsel prayed that the materials on record be reassessed

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and it be held that the accident occurred due to the

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negligence of the car driver and at the most a nominal degree of negligence of the lorry driver. If such a finding is recorded, it would be convenient for respondent Nos.1 and 2 to recover the amount from the owner or insurer of the offending car. With these reasons prayed to allow the appeal.

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Learned counsel for the claimants/respondents contended that the deceased was a passenger in the car and had not contributed for the occurrence of the accident. Even if it is assumed that the drivers of both vehicles had contributed to the accident, the claimants, being the legal representatives of the deceased Rajashekaraiah, are entitled to recover the compensation from either of the joint tortfeasors. It is not mandatory for the claimants to implead both the joint tortfeasors as parties to the proceedings. If both the joint tortfeasors are parties, then only the Tribunal may apportion the negligence between

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them. In the absence of one of them, the Tribunal may direct one of joint tortfeasor, who is a party to pay compensation with a liberty to recover the proportionate amount from the other joint tortfeasors in an appropriate proceedings. It was therefore contended that the appeal is devoid of merit and prayed to dismiss the same.

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The manner in which the accident occurred and the death of Rajashekaraiah in the said accident are not in dispute. There is also no serious dispute regarding the quantum of compensation awarded by the Tribunal. The serious dispute pertains to the fastening of the entire liability on the owner and insurer of the offending lorry, instead of on the owner and insurer of the offending car.

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The accident occurred on 27.10.2019 at about

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10:40 a.m. It is undisputed that the lorry was parked on the left side of the road and that the car, which was approaching from its rear, collided with it. The allegation made by the claimants is that there was no proper

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indication or signal showing that the lorry had been parked on the road. Hence, it was contended that the driver of the lorry negligently parked the vehicle on a busy traffic road, and therefore, the negligence was with the driver of the lorry and not with the driver of the car.

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It is undisputed that the owner and insurer of the alleged offending car bearing registration number KA-06N-3698 were not parties to the proceedings before the Tribunal. Although the insurer raised such a defence, during the course of the trial — which remained pending before the Tribunal for more than two years, neither the owner nor the insurer of the car was impleaded as a party. In the absence of these necessary parties, the Tribunal nevertheless proceeded to assess negligence and apportioned it in the ratio of 80:20 between the drivers of the lorry and the car respectively. Such an assessment is impermissible in the absence of the concerned parties, as the owner and driver of the car had no opportunity to

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contest or challenge the said finding. It is a settled principle of law that no person shall be condemned unheard. Therefore, holding a party negligent in causing the accident without affording an opportunity of hearing amounts to injustice. Accordingly, the finding of the Tribunal regarding apportionment of negligence cannot be sustained as it is not in accordance with law.

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The full Bench of this Court in the case of KSRTC Vs Arun reported in 2003 SCC Online, Karnataka 715, Ganesh Vs Syed Munned Ahamed reported in 1998 SCC Online Karnataka 603 equivalent

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to ILR 1999 Karnataka 403 and Hon'ble Apex Court in the case of Khenyei Vs New India Assurance Co. Ltd . and others reported in 2015 SCC Online SC 433 it is held that in case of contributory negligence of drivers of two or more vehicles, the claimant who had not contributed for the accident, can claim compensation from either of the joint tortfeasors. One of the joint tortfeasors can recover the amount in an appropriate proceedings

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initiated against another joint tortfeasor. The said

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contribution has to be apportioned, and this would not affect the right of the claimants to recover compensation from either of the joint tortfeasors. It is also well settled

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that, in the absence of all the joint tortfeasors, the Tribunal cannot assess or determine the extent of contribution made by each of them. Only when all the joint tortfeasors are made as parties to the proceedings and sufficient materials are available on record, then only the Court may proceed to assess contributions of each joint tortfeasors. In the Khenyei case referred supra, at paragraphs 22.1 to 22.4 it is held as under:

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"22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

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22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may

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recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.

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The aforesaid findings of the Hon'ble Apex Court is applicable to the facts of the present case.

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Undisputedly, owner, driver and insurer of the car

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are not party to the proceedings. Therefore, it is not proper to discuss and determine the contributory negligence of drivers of the car involved in the present case. It has to be considered in an appropriate proceedings. In view of these reasons, the deduction of 20% of the compensation amount as ordered by the Tribunal is also not legally tenable. It is contrary to the law laid down by the full Bench of this Court, as well as

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Hon'ble Apex Court. Under these circumstances, even though no appeal has been filed by the claimants, the

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error committed by the Tribunal which is apparent on the face of record. Accordingly this Court pass the following:

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ORDER

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Appeal is disposed of in terms of following:

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Impugned Judgment and award dated 21.07.2022. passed in MVC No.4007/2020 on the file of Chief Judge, Court of Small Causes and MACT is modified.

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Claimants are entitled for entire compensation of Rs.16,99,500/- with interest at the rate of 6% per annum from the date of petition till its realisation. If there is any balance respondent No.2 is liable to pay the said amount within a period of six weeks.

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Respondent No.2 is at liberty to initiate proceedings against owner, driver and insurer of the offending car and by proving negligence of both the joint

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