Mr. K. Kamalaksha Shetty Vs Mr. Abdul Khader

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.08.2020 PASSED IN MVC NO. 1544/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBE, ADDITIONAL MACT, XI DAKSHINA KANNADA, MANGALURU, SITTING AT PUTTUR, DAKSHINA KANNADA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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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 filed by the claimants being aggrieved by the judgment and award dated 04.08.2020 passed by the V Additional District and Sessions Judge and Member, Addl.MACTXI, D.K. Mangaluru, sitting at Puttur, D.K (for short `Tribunal'), in MVC No.1544/2018 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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The brief facts of the case of both the parties before the Tribunal were that :

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On 20.01.2018, at about 10.00 p.m, the petitioner was traveling on the motor cycle bearing registration No.KA-21-X5876 as a pillion rider from Puttur side towards Uppinangady

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HC-KAR

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side, at petrol pump, Kemmai of Chikkamadnuru village, Puttur taluk, D.K, they met with an accident due to rash and negligent driving of the car bearing registration No.KA-21-N-7718. As a result, the claimant fell down and sustained grievous injuries. He has suffered permanent disability. With these reasons, prayed to award compensation of Rs.10,00,000/-.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending car. Both of them filed written statement denying the averments of the claim petition. In addition to that respondent No.2 contended that the petition was bad for non-joinder of the necessary parties. The accident occurred due to the negligence of rider of the motor cycle. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed the following issues:

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i. Whether the petitioner proves that on 20-012018 at about 10.00 p.m., he was proceeding as a pillion rider in a motor cycle bearing Registration No.KA-21-X-5876 Puttur side towards Uppinangady side near Petrol Pump, Kemmai of Chikkamagaluru Village, Puttur Taluk, D.K., the driver o Car bearing Registration No.KA-21-N- 118 drove the same from opposite side in a and negligent manner and came to the extreme wrong side of the road and dashed to the Car and he fell down and sustained injuries?

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ii. Whether the 2^nd respondent proves that the rider of the motor cycle is guilty of contributory negligence?

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iii. Whether the petition is bad for non-joinder of necessary parties i.e., Owner and Insurer of said Car?

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iv. Whether the 2^nd respondent proves that the driver of the Car did not possess valid or effective Driving Licence as on the date of accident?

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v. Whether the petitioner is entitled for compensation, if so, what amount and from whom?

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vi. What order or Award?

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The claimant to prove his case examined two

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witnesses as PW-1 and PW-2 and marked 13 documents, as per Exs.P-1 to P-11 and Ex.C1. The respondents have not lead oral evidence but marked one document as Ex.R1.

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The Tribunal after hearing both the parties and appreciating the evidence on record, answered Issue Nos.1, 4 and 5 in the negative and on that ground dismissed the claim petition.

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The Tribunal held that rider of the motor cycle contributed to the accident in question and owner and insurer

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of the said vehicle were necessary parties. Basically on that

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ground, the claim petition was dismissed.

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The Hon'ble Apex Court in the case of Khenyei vs

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New India Assurance Company Limited and others¹ ,

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which reads as follows:

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A. Motor Vehicles Act, 1988 - Sections. 166, 168 and 170 - Composite negligence - Joint tortfeasors - Liability - Joint and several nature of - (1) Apportionment of, nor, (2) determination of inter se liability, nor, (3) impleadment of all joint tortfeasors, held, required in case of joint and several liability - Entire compensation can be awarded against sole impleaded tortfeasor -Inter se liability of joint tortfeasors is to be worked out independently.

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Accident occurred due to negligence of drivers of both the vehicles that had collided causing the accident - Victim/claimant sued insurer of only one vehicle for recovery of entire compensation - When accident occurred due to composite negligence of more than one person, held, they being joint tortfeasors, would be liable jointly as well as severally to pay compensation- Hence, victim/claimant entitled to sue any of the joint tortfeasors or all of them for recovery of entire amount of compensation - Extent of liability of each of them separately is neither required to be established by victim/claimant, nor required to be determined by court/Tribunal for purpose of payment of compensation - Even if claimant impleads all joint tortfeasors and court/Tribunal is able to determine their inter se liability, their liability would remain joint and several - Furthermore, apportionment of compensation, proportionate to extent of negligence of each of the joint tortfeasors, not required for payment of compensation to victim/claimant- Even if only one of the joint tortfeasors (insurer of one of the two vehicles involved in accident in this case) impleaded by claimant, he/it would be obliged to make full payment of compensation Non-impleadment of other joint tortfeasors not a defence to reduce compensation payable to

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1 (2015) 9 SCC 273

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claimant- Tort Law- joint tortfeasors - Composite negligence - Compensation Liabilities of joint Tort Law - Joint tortfeasorsjoint and several nature of.

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B. Tort Law Contribution - Joint tortfeasors - Inter se liability - Modes available for settlement of

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Composite negligence of more than one person (excluding victim/claimant) cause of accident - Remedies available to one of the joint tortfeasors from whom (entire) compensation recovered by claimant - He can sue nonimpleaded joint tortfeasors in independent proceeding for recovery of contribution to the extent of their negligence - If, however, all joint tortfeasors are before court/Tribunal and sufficient evidence available, it may determine extent of their negligence for purpose of adjusting inter se liability so as to enable one to recover sum from the other(s) in execution proceeding in the main case Motor Vehicles Act, 1988, Sectionss. 166, 168 and 170

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10. Undisputedly, t he claimant was the pillion rider on the motorcycle. Even if it is accepted that the accident occurred due to contributory negligence of rider of the motorcycle and the car driver, the claimant being the pillion rider, can claim compensation from either of the joint tortfeasors. Moreover, even in the absence of one of the joint tortfeasors, the Tribunal can proceed with the case and decide the case. The Tribunal ought not to have dismissed the petition for not impleading the owner and insurer of the motor cycle involved in the accident. The said finding is erroneous.

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11. The Tribunal has not assessed the

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compensation on the basis of the materials placed on record. In view of these reasons, the matter needs to be remanded for re-consideration and determination of compensation in accordance with law.

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12. Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The impugned judgment dated 04.08.2020 passed by the V Additional District and Sessions Judge and Member, Addl.MACT-XI, D.K., Mangaluru, sitting at Puttur, D.K., is set aside and the matter is remanded back to the Tribunal.

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iii. The Tribunal shall decide the matter in accordance

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with law and also following principle of law laid down by the Hon'ble Apex Court in the case of Khenyei's (supra).

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iv. Both the parties are at liberty to address their respective contentions before the Tribunal.

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v. To avoid further delay in disposing the matter, both the parties are directed to appear before the Tribunal on 10.11.2025 without waiting for further notice from the Tribunal.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal, at the earliest.

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Sd/(UMESH M ADIGA) JUDGE

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AG List No.: 1 Sl No.: 40

Mr. K. Kamalaksha Shetty v. Mr. Abdul Khader

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Mr. K. Kamalaksha Shetty v. Mr. Abdul Khader

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