IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.3059 OF 2011 [MV] BETWEEN M/s.Oriental Insurance Company Limited Thejus Complex Sayyaji Rao Road Mysore, now rep. by its Regional Office No.44/45, Leo Shopping Complex, Residency Road Cross, Bangalore-560025 Rep. by its Authorized Signatory. ... Appellant [By Sri A M Venkatesh, Advocate] AND 1. M S Nagendra s/o Somashekara No.28, Ashrama Road Madhava Block New Bamboo Bazaar Road, Mysore 2. H K Jaganath s/o late H Kondaiah 1562, Narayana Sastry Road Siddappa Square, Mysore (amended v/c/o dtd.10.11.2011) 3. Sri Suresh Babu s/o late Ramdas r/a No.177 Naguvanahalli Road 2nd Stage, Kesare Mysore-570007.
4. Eshwara N, s/o Nanjaiah No.33, Near Dharmasingh Colony, Vishweshwaraya Nagar, Mysore (Driver cum owner of Autorickshaw bearing No.KA-09/7964) 5. Sri A S Sahinath s/o A N Shadrishetty No.173, `A’ Block Ganeshnagar C H Mohalla, Mysore. ... Respondents [By Sri H S Prashanth for Supra Associates, Advocate for R3, R1, R2 and R4 served R5 notice held sufficient v/c/o dated 2.12.2016) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 30.12.2009 passed in MVC No.1022/2009 (old MVC No.42/2001) on the file of the Presiding Officer, Fast Track Court-I, Member, Additional MACT, Mysore, awarding a compensation of Rs.1,30,000/- with interest @ 6% p.a. from the date of petition till payment except future medical expenses of Rs.5,000/-
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed by the Insurance Company challenging the liability fastened on it while awarding a global compensation of Rs.1,30,000/- with interest at 6% p.a by the Tribunal in MVC No.1022/2009 (old MVC No.42/2001).
2. I have heard the learned counsel appearing for the appellant/Insurance Company and the learned counsel appearing for respondent No.3. Respondents No.1, 2 and 4 have been served and they remained unrepresented.
Notice to respondent No.5 is held sufficient and there is no representation.
3. The facts of the case are that on 8.4.2000, the claimant by name, Suresh Babu, was traveling in an autorickshaw bearing Regn. No.KA-09/7964 from Vikranth Tyres Limited towards RTO Circle, Mysore. When the said autorickshaw came in front of Jaladarshini House on Mysore – Hunsur Road, a car bearing Regn. No.MEB 9645 driven by its driver came in a rash and negligent manner from opposite direction and dashed against the autorickshaw. Due to the said impact, he was thrown out from the autorickshaw resulting in fracture of his left lower limb and other parts of the body. He was shifted to KR Hospital, Mysore, wherein he took treatment as an inpatient and undergone operation to his left leg.
4. The Tribunal awarded a global compensation of Rs.1,30,000/- with interest at the rate of 6% p.a. from the date of petition till the date of payment except for the future medical expenses of Rs.5,000/-.
5. Assailing the said judgment and award passed by the Tribunal, learned counsel, Sri A M Venkatesh, appearing for the appellant vehemently contended that the Tribunal has come to the conclusion that the alleged accident was on account of rash and negligent driving on the part of drivers of both the vehicles and there is composite negligence. However, the Tribunal has not apportioned the contributory negligence with respect to each vehicle. Therefore, he submits that holding respondents No.3 to 5 jointly and severally liable and also directing the claimant to recover from any of the said respondents is not sustainable.
6. The appellant has not challenged the quantum of compensation awarded by the Tribunal. However, the contention is that there is no apportionment of contributory negligence by the Tribunal though it is held that the rash and negligent is on the part of both the drivers and it is a composite negligence. Perusal of the records goes to show that the accident had occurred on 8.4.2000 and in this regard, the FIR and charge sheet Exs.P1 and P2 were filed against the driver of the car in question. Ex.P3 – ordersheet discloses that the driver of the car pleaded guilty. The Tribunal has held that it is a clear case of composite negligence of both the drivers i.e. driver of autorickshaw and driver of car and it has come to the conclusion that respondents No.3 to 5 are jointly and severally liable to pay the compensation and further directed the claimant to recover the same from any of the said respondents.
7. It is not in dispute that there is no insurance coverage for the car in question. However, the driver and owner of the car have been impleaded as respondents before the Tribunal as well as before this Court. The Tribunal has held that it is a composite negligence on the part of driver of the car and driver of the autorickshaw in question. The appellant is the insurer of the autorickshaw. The Tribunal has awarded a global compensation of Rs.1,30,000/- with interest at 6% p.a. except for future medical expenses of Rs.5,000/-. The Tribunal has erred in not apportioning the extent of negligence of the drivers of both the vehicles. Considering the facts and circumstances of the case and also perusing the FIR, chargesheet and evidence of injured – PW1, I am of the view that there is contributory negligence to an extent of 50% on the part of both the vehicles.
8. The Hon’ble Apex Court in the case of Khenyei – vs- New India Assurance Company Limited and others reported in (2015) 9 SCC 273 has held as under:
“22.3 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 tort feasors is only for the purpose of their inter se liability so that one may recover the same from the other after making whole of the 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 the main case one joint tort feasor can recover the amount from the other in the execution proceedings.”
9. In view of the aforesaid decision of the Hon’ble Apex Court, though the liability of respondents No.3 to 5 is joint and several, however, the appellant/Insurance Company is at liberty to recover 50% of the amount from the other joint feasors in case claimant recovers the entire amount from the appellant herein as directed by the Tribunal under the same award.
With the above observation, appeal is allowed in part.
The amount in deposit shall be transmitted to the Tribunal The appellant shall deposit the compensation awarded within a period of eight weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm.