Appeal by insurer against liability and quantum in a motor accident claim. Court held claim was maintainable against one joint tortfeasor without impleading the other and found no grounds to interfere with compensation quantum.
CMA dismissed; no costs to appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CMA(MD).No.731 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.03.2023
PRONOUNCED ON : 15.03.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.731 of 2020
National Insurance Company Limited Through its Divisional Manager Divisional Office No.7, 50, Janpath New Delhi 110 001
... Appellant
vs.
1.Paneer Selvam
2.M.Murugan
3.S.Fagarudeen
...Respondents
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aide the judgement and decree passed in MCOP.No.160 of 2016 dated 07.11.2019 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Tirunelveli and allow the appeal with costs.
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For Appellant : Mr.J.S.Murali For R1 : Mr.T.Selvakumaran For R2 & R3 : No appearance
JUDGMENT
The above appeal has been filed by the Insurance Company challenging the Negligence/liability and quantum fixed by the Motor Accident Claims Tribunal, Tirunelveli in M.C.O.P.No.160 of 2016.
3.As per the case of the claimant, the driver of the motor bike in which the deceased was travelling as a pillion rider was driving in a high speed towards north. The Maruthi Omni Van belonging to the third respondent was coming from opposite direction without sounding horn in a high speed in a rash and negligent manner and hit against the motor cycle.The accident had occurred only due to the rash and negligent driving of the drivers of the first and third respondents. Hence, the
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claimant had pleaded for joint and several liability as against the driver of the bike and Maruthi Van.
4.The owner of the bike was impleaded as first respondent and his insurer was impleaded as second respondent. The owner of the Maruthi Van was impleaded as third respondent.
5.The Insurance Company had filed a counter contending that the driver of the bike was not driving in a rash and negligent manner . Only the Maruthi Van coming from the opposite direction was driven in a rash and negligent manner, in a high speed and dashed against the motor bike. The accident had happened only on the ground of fault with the driver of the third respondent. According to the Insurance Company, they are not liable to pay any compensation and the liability is upon the owner of the Maruthi Van which is not insured with them.
6.The Tribunal after considering the F.I.R, Motor Vehicle Inspector's report and the rough sketch, arrived at a finding that the driver of the motor bike had driven in a rash and negligent manner and the accident had happened on the right side of the road. The driver of the bike had crossed a roundtana and while turning on the right side, he had
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gone to far right and the accident had happened. That apart, the bike driver was not having driving license at the time of accident.
7.Based upon the above said findings, the Tribunal directed the Insurance Company to pay compensation and recover the same from the owner of the bike.
8.As far as the quantum is concerned, the Tribunal has taken the age of the deceased as 21 and fixed the monthly income at Rs.7,000/- per month and awarded 40% towards future profits and had deducted 50% towards personal expenses and arrived at a total compensation of loss of income at Rs.10,58,400/-. The Tribunal has awarded Rs.15,000/- towards Funeral Expenses and Rs.15,000/- towards loss of estate. This award is under challenge in the present appeal.
9.According to the learned counsel for the appellant, when the claimant himself has pleaded that both the driver of the motor bike as well as the Maruthi Van were at fault and they were driving their respective vehicles in a rash and negligent manner, the Tribunal ought not to have fixed the entire liability upon the Insurance Company of the Motor Bike. He had further contended that the the insurer of the Maruthi Van has not been impleaded. Even assuming that there was a composite
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negligence, 50% of the liability should have been apportioned to the owner of the Maruthi Van. Therefore, he contended that the award is liable to be set aside.
10.Per contra, the learned counsel for the claimants had contended that when there two joint tortfeasors, it is the option of the claimants either to sue any one of the tortfeasors or both of them. In the present case, the claimant has chosen to sue owner of the motor bike and their insurance company. Therefore, the non-impleading of the insurance company of the Maruthi Van will not be fatal. He had further contended that the award amount of the Tribunal is on a lower side and therefore, the quantum may not be interfered.
11.I have considered the submissions made on either side and perused the materials available on record.
12.A perusal of the claim petition reveals that the claimant had alleged that both the bike driver as well as the Maruthi Van driver were driving their vehicles in a rash and negligent manner and both of them are responsible for the said accident.
13.The Insurance Company had contended that there was no negligence on the part of the bike driver. No contra evidence has been let
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in by the Insurance Company. That apart, the bike driver was not having license at the time of accident. The Tribunal has arrived at a categorical finding based upon the rough sketch and the motor vehicle report of both the vehicles that only the bike was driven in a rash and negligent manner.
14.Therefore, this Court is of the view that there is no oral or documentary evidence to shift the negligence on the part of the driver of the Maruthi Van. The only conclusion that could be arrived, is that both the drivers are joint tortfeasors. Then the issue that arises for consideration is that whether without impleading one of the tortfeasors, the claim petition is maintainable or not. The Hon'ble Supreme Court in a judgement reported in (2015) 9 SCC 273 (Khenyei Vs. New India Assurance Company Limited and others) in Paragraph Nos.22.1 to 22.3 have held as follows:
“22......
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.
22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the
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plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
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 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.”
15.In view of the Judgement of the Hon'ble Supreme Court, it is clear that the claimant is entitled to issue both or any one of the joint tortfeasors to recover the entire compensation. The Hon'ble Supreme Court has further held that in cases of composite negligence, apportionment of compensation between two tortfeasors as against the claimant is not permissible and the claimant can recover at his option for
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the entire compensation from any one of the tortfeasors. Therefore, this Court is of the view that the contention of the learned counsel appearing for the Insurance Company that the claim petition is not maintainable on the ground of non-implement of another tortfeasor is not legally sustainable.
16.As far as the issue of quantum is concerned, the Tribunal has taken a very conservative view and awarded a sum of Rs.10,58,000/towards loss of income of 21 years old man who was working as a cleaner at the time of accident, calculating the monthly salary at the rate of Rs.7,000/-. Therefore, this Court is not inclined to interfere either in the finding relating to the liability or with regard to the quantum of compensation awarded by the Tribunal.
17.This Civil Miscellaneous Appeal is devoid of merits and the same stands dismissed. No costs.
15.03.2023
Index : Yes/No Internet : Yes/No NCC : Yes/No mas
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To
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R.VIJAYAKUMAR,J.
msa
Pre-delivery order made in C.M.A(MD)No.731 of 2020
15.03.2023
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2 issues framed by the court
Whether the claim petition is maintainable in the absence of impleading another joint tortfeasor?
Whether the Trial Court erred in the quantum of compensation awarded?
Colour shows how this judgement treated each authority
Khenyei Vs. New India Assurance Company Limited and othersApplied¶50
(2015) 9 SCC 273 (Khenyei Vs. New India Assurance Company Limited and others) · Who else cites this
National Insurance Company Limited
Paneer Selvam
M. Murugan
S. Fagarudeen
R. Vijayakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
