IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR M.F.A. NO.1108 OF 2019 (MV) BETWEEN :
M/S. NATIONAL INSURANCE COMPANY LTD DIVISIONAL OFFICE NO.V, 72, MISSION ROAD, UNITY BUILDING, ANNEXE, BANGALORE - 560 027.
NOW REPRESENTED BY:
REGIONAL OFFICE, NATIONAL INSURANCE CO. LTD., NO.144, 2ND FLOOR, SHUBARAM COMPLEX, M.G. ROAD, BANGALORE 560 001 REPRESENTED BY ITS AUTHORISED SIGNATORY. (MR. K. SAI PRAKASH).
... APPELLANT (BY SRI M. ARUN PONAPPA, ADVOCATE) AND :
1. SMT VISHALAKSHI AGE. 63 YEARS W/O. LATE VISHWANATHA SHASTRI @ N. VISHWANATHAIAH.
2. SRI. N.V. VENUGOPAL AGE 40 YEARS S/O. LATE VISHWANATHA SHASTRI @ N. VISHWANATHAIAH.
3. N.V. RAVI @ RAJU AGED 34 YEARS S/O LATE VISHWANATHA SHASTRI @ N. VISHWANATHAIAH ALL ARE RESIDING AT NO.1636, BRAHMINS STREET, NELAMANGALA, BANGALORE.
4. SRI. KAIYAM, MAJOR S/O DASTAGIRI, R/O BURUDAGUNTE, CHINTAMANI TLAUK, KOLAR DISTRICT.
5. SRI. B.M. SURESH, MAJOR, S/O MINIAPPA R/O BANTARAKUPPE, SOLUR HOBLI, MAGADI TALUK, BANGALORE RURAL DISTRICT.
6. SRI. P. VENKATESH BABU MAJOR R/AT NO.19, KAVERI NILAYA, 3RD CROSS, SUDHAMANAGAR, BANGALORE 560 027.
... RESPONDENTS THIS M.F.A. IS FILED U/S 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED: 27/11/2018, PASSED IN M.V.C. NO.4938/2006, ON THE FILE OF XIX ADDITIONAL SMALL CAUSES JUDGE & MACT, BENGALURU (SCCH-17), AWARDING COMPENSATION OF RS.5,14,744/- WITH INTEREST @ 6% P.A., FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT This appeal is filed by the insurance company challenging the impugned judgment and award dated 27.11.2018 passed in M.V.C. No.4938 of 2006 by M.A.C.T., Bengaluru (SCCH-17), whereby the Tribunal has awarded compensation of Rs.5,14,744/- along with interest at the rate of 6% p.a.
2. The averments made in the claim petition are that petitioners are wife and children of deceased Vishwanatha Shastri @ N. Vishwanathaiah, who died in a road traffic accident that took place on 13.01.2006 at about quarter to 10’o clock in the night. On the date of incident, deceased was traveling in maruthi van bearing No.KA-01/P-3015 heading towards Horanadu from Nelamangala on Bengaluru-Mangaluru NH-48 road, near Kannasandra. The deceased drove the maruthi van in high speed, rash and negligent manner and caused accident by colliding with Tata 407 vehicle bearing No.KA-39/8616 which was also driven by its driver from opposite direction in rash and negligent manner. Due to the impact of said accident, maruthi van turtled and fell on a road side ditch causing injuries to the inmates of the van. One of them, i.e., Vishwanath succumbed to the injuries in the hospital while he was undergoing treatment. Deceased was aged about 57 years and he has hale and healthy at the time of accident. He was earning Rs.8,336/- per month by working as Gangman in Bengaluru city Corporation. The jurisdictional police have registered case in Crime No. 9 of 2006 against the driver of offending Tata 407 vehicle.
3. In pursuance of service of summons in the claim petition, fourth respondent resisted the claim and filed written statement denying the averments made in the claim petition in toto and inter alia contended that the policy issued is subject to the terms and conditions as stated therein. It is further stated that if at all the alleged accident had taken place, it is purely due to the negligence on the part of the driver of Tata 407 vehicle against whom the case is registered and chargesheet is laid by the Investigating Officers. Based upon the pleadings of the parties, the Tribunal has framed the issues and gave findings by assigning reasons and awarded compensation in a sum of Rs.5,14,744/- along with interest at 6% p.a. and fastened liability on respondentsNo.1 and 4 equally. However, it is relevant to state that it is a settled position of law that the claim petition made by the claimant under Section 166 of the I.M.V. Act is a sine quo non to the actionable negligence on the part of the tortfeasors which is to be proved by the doctrine of preponderance of probability, but not beyond shadow of doubt as required in a criminal trial wherein the accused who is facing up a trial for the alleged offence under the relevant penal code as well as other related offences. But, initial burden is on the petitioners/claimants to prove actionable negligence on the part of the driver of the offending vehicles.
4. In this backdrop, the Tribunal has analysed the evidence of P.W.1 Smt. Vishalakshi and so also the evidence of P.W.2 Shri N. V. Venugopal as well as the documents at Exs.P-1 to P-12 produced by the claimants in order to establish their case against the respondents for seeking compensation. But, it is relevant to state that the Tribunal has relied upon the judgment of the Hon’ble Supreme Court in the case of Khenyei v. New India Assurance Co. Ltd. And others reported in 2015 ACJ 1441, wherein it has been held in para 4 that, “it is a case of composite negligence where the injuries have been caused to the claimants by combined wrongful act of joint tortfeasors. In a case of accident caused by negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court. However, in case all the joint tortfeasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter se equities between them at appropriate stage. The liability of each and every joint tortfeasor vis-à-vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between the tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.”
5. Therefore, the principles formulated are :
i. in the case of composite negligence, the plaintiff / claimant is entitled to sue both or any of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
ii. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-avis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
iii. In case all the joint tortfeasors 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 tortfeasors 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 tortfeasor can recover the amount from the other in the execution proceedings.
iv. 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 tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.
6. In the case on hand, the concept of composite negligence has been reflected in the averments made in the claim petition as well as the written statement said to be filed by respondent No.4 to resist the claim petition filed by legal representatives of deceased.
7. However, the ratio of reliance, as stated supra, in detail, this Court is of the opinion that the appeal suffers from infirmities and there is no merit to consider this appeal and proceed further. Therefore, the appeal stands rejected in terms of the aforesaid reasons.
8. It is made clear that the appellant / Insurance Company is at liberty to proceed against respondent No.1, who is the owner of offending vehicle in accordance with law.
9. In view of dismissal of the appeal, I.A. No.1/2019 filed for stay does not survive for consideration. Accordingly, the same is rejected.
SD- JUDGE hnm