IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA NO.4388/2013 (MV) BETWEEN:
SMT PANDI MEENAL AGED ABOUT 35 YEARS W/O LATE SHIVA SENDIL NO.14/140 VIVEKANANDA STREET PENNINAGAR KARAMBAKKAMPURA CHENNAI-600116.
... APPELLANT (BY SRI. GIRIMALLAIAH, ADV.) AND 1. THE MANAGER M/S. IFFCO TOKIO GENERAL INSURANCE CO. LTD. NO.41, 2ND FLOOR LAVELLE ROAD, BENGALURU 560001 2. SRI L. PRAMOD S/O LAKSHMAN NO.102, POOJA RESIDENCY HAL 2ND STAGE OLD THIPPASANDRA, 11TH MAIN 9TH CROSS, INDIRANAGAR BENGALURU 560038.
3. SMT. NEELAVATHI AGED ABOUT 67 YEARS W/O LATE MATHU KOORI NO.48/1, MUTHU KOORI NILAYAM 7TH MAIN, G.M. PALYA NEW THIPPASANDRA POST BENGALURU-560075.
... RESPONDENTS (BY SRI. D.S.SRIDHAR, ADV. FOR R1, SRI. SURESH SUBBAIAH, ADV. FOR R3, NOTICE TO R2 IS DISPENSED WITH V/O DATED: 26.10.2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.01.2013 PASSED IN MVC NO.4068/2010 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel for the respective parties, the appeal is heard finally.
2. The legality and correctness of the judgment and award dated 4.1.2013 passed in MVC No.4068/2010 by the IX Additional Senior Civil Judge, Small Causes Court, Bangalore (hereinafter referred to as the “Tribunal” for the sake of brevity) is called in question in this appeal.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. Appellant and respondent No.3 herein filed the claim petition under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as the “Act” for the sake of brevity) seeking compensation on the account of death of Mr.Shiva Sendil in a road traffic accident that occurred on 15.8.2009. According to the claimants, on that date at about 2.00 a.m. Mr.Shiva Sendil along with friends were traveling in a Maruthi Swift Car bearing Registration No.KA- 03-MK-6747 from Hosur towards Rayakottai and when they reached near Devasandram, a lorry was parked on the left side of the road without any indicator and driver of the car driving the same in a rash and negligent manner dashed against the said lorry. As a result, Mr.Shiva Sendil sustained injuries and he was shifted to Government Hospital, Hosur and later he was shifted to NIMHANS Hospital, Bangalore and was given treatment from 15.8.2009 to 19.8.2009. During the course of treatment, he died on 19.8.2009. Siddapura Police registered a case at UDR Cr.No.27/2009 and transferred the said complaint to Royakottai Police Station wherein they registered the case in Cr.No.247/2009 for the offences punishable under Sections 279, 304A of IPC against the driver of the car. Contending that they had lost their bread earner of the family, claimants sought compensation of Rs.80,00,000/- under various heads.
5. In response to the notice issued, respondents appeared and filed their respective written statements. Respondent No.1-insurer admitted that the insurance policy was issued in favour of respondent No.2 in respect of the car in question. But the Insurance Company denied the fact that the accident had occurred due to the fault of the driver of the car. It was contended that the accident occurred due to the fault of the driver of the lorry, which was parked without any indicator; that the driver of the car was not holding a valid and effective driving licence to drive the same and there was violation of the conditions of the policy and that respondent No.1 was not liable to pay any compensation to the claimants. Hence, the insurer sought for dismissal of the claim petition.
6. Respondent No.2, owner of the car in his written statement has stated that he was the registered owner of the car which was duly insured with respondent No.1- insurer and policy was in force as on the date of the accident. However, the occurrence of the accident was denied. It was contended that he was not liable to pay compensation and sought for dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
1. Whether the Petitioner proves that she is the legal representative of the deceased Sri.Shiva Sendhil?
2. Whether the petitioner proves that on 15.08.2009 at about 2.00 a.m. when the deceased and his friend were traveling in Maruthi Swift Car bearing Reg. No.KA-03-MK- 6747 on Hosur-Rayakottai Main Road, near Devasandram, Krishnagiri Taluk, Tamilnadu, within the limits of Royakottai Police Station, at that time the driver of the above said Maruthi Swift Car drove the same in a rash and negligent manner and dashed against the parked Lorry? If so, deceased sustained fatal injuries and succumbed to the injuries was due to alleged accident?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4. What Order or Award?.
8. In support of their case, claimant No.2 examined herself as PW-1 and claimant No.1 examined herself as PW-
2 and they produced 40 documents Ex.P-1 to 40. The Insurance Company let in evidence through RW-1, but no documentary evidence was produced on behalf of the insurer.
9. On the basis of evidence on record, the Tribunal answered issue No.1 in the ‘affirmative’, issue No.2 ‘partly in the affirmative’ and issue No.3 as ‘does not arise for consideration’ and dismissed the claim petition. Being aggrieved by the dismissal of the claim petition, claimant No.2 has preferred this appeal arraying claimant No.1 as respondent in the appeal.
10. We have heard learned counsel for the appellant and learned counsel for respondent No.1, insurer and perused the material on record as well as the original record. Service of notice on respondent No.2 is held sufficient.
11. Learned counsel for the appellant contended that the Tribunal was not right in dismissing the claim petition. When two vehicles are involved in an accident, it is left to the option of the claimant to seek compensation from the owner, driver and insurer of any one of the vehicles and hence the driver and insurer of the car in question was arrayed as respondents in the claim petition. Deceased, Mr. Shiva Sendil was an inmate of the car. The car was insured with the Insurance Company. The fact of the accident was proved. The Tribunal however held that the driver of the car was not negligent in causing the accident and dismissed the claim petition on account of not arraying the driver, owner and insurer of the lorry. He contended that having regard to the fact that two vehicles were involved, liability ought to have been fixed on the owner, driver and insurer of the car, who could have claimed compensation from the driver, owner and insurer of the lorry on the principles of subrogation. He contended that the claim petition ought not to have been dismissed and therefore, the matter may be atleast remanded to the Tribunal for a fresh consideration.
12. Per contra, learned counsel for the Insurance Company supported the judgment and award of the Tribunal and contended that the Tribunal has concluded that it was the driver, owner and insurer of the lorry, who were jointly responsible for the cause of the death of Mr.Shiva Sendil and therefore, the driver, owner and insurer of the car were exonerated and the claim petition was dismissed as the claimants ought to have arrayed the driver, owner and insurer of the lorry as they were negligent in causing the accident. Having regard to the fact that the lorry was parked on National Highway at 2.00 a.m., the driver of the car could not have noticed the same as the lorry had been parked without any signal or indicator. Therefore, the Tribunal was justified in dismissing the claim petition and that there is no merit in this appeal.
13. Having heard the learned counsel for the respective parties, the following points arise for consideration:
1. Whether the Tribunal was justified in dismissing the claim petition ?
2. What order?
14. The fact that Mr.Shiva Sendil was an inmate of Maruthi Swift Car bearing Registration No. KA-03-MK-6747 which was proceeding from Hosur towards Rayakotti on 15.8.2009 has been established and at about 2.00 a.m. on the said date, the car dashed against the lorry, which was parked on the left side of the road without any indication. However, it is noted that the claimants did not array the driver, owner and insurer of the lorry as respondents in the claim petition. Compensation was sought only against the owner and insurer of the car. The Tribunal concluded that the accident had occurred on account of negligence on the part of the driver and owner of the lorry in question for having parked the lorry on the road without any indication and exonerated the driver, owner and insurer of the car.
15. Be that as it may, the question that arises now is whether the legal representatives of Mr.Shiva Sendil, who died on account of road traffic accident, should be deprived of compensation. The fact remains that he was traveling in car and the car met with an accident on account of same dashing to the parked lorry. It is also a fact that the driver, owner and insurer of the lorry were not arrayed as respondents before the Tribunal. Therefore, the Tribunal on holding that they were responsible in causing the accident and not arraying them as parties, simply dismissed the claim petition. We find that the approach of the Tribunal in that regard is not correct. Question that would arise is that even if the driver, owner and insurer of the lorry were not arrayed as parties, whether the claimants could be deprived of compensation on account of death of Mr.Shiva Sendil, who was an inmate of the car. In that regard, learned counsel for the claimants has placed reliance on a recent judgment of the Hon’ble Supreme Court in the case of Khenyei vs. New India Assurance Company Limited and others (2015 ACJ 1441) (in Civil Appeal No.4244/2015 and connected matters), where the question that arose for consideration was whether it is open for the claimant to recover the entire compensation from one of the tort- feasors particularly when the compensation was assessed. The relevant portion of the judgment reads as under:
“What emerges from the aforesaid discussion is as follows:
(i) 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.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the Plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) 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.
(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 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.”
16. Although in the instant case, the Tribunal has held that the entire negligence was on the driver, owner and insurer of the lorry in question and since they were not made as parties, the claim petition was dismissed. Nevertheless in order to give a fresh opportunity to the claimants to seek compensation by arraying those parties as respondents in the claim petition, if the need so arises. we find that in the interest of justice, the judgment and award of the Tribunal ought to be set aside and is accordingly set aside. Consequently, point No.1 is answered in the aforesaid terms.
17. In the circumstances, the appeal is allowed and disposed of in the aforesaid terms. The matter is remanded to the Tribunal for fresh adjudication. Liberty is reserved to the claimants as well as respondents to array the driver, owner and insurer of the lorry as respondents in the claim petition. If they are so arrayed, the Tribunal shall give a fresh finding on the issue of negligence and dispose of the claim petition in accordance with law.
18. Office to dispatch the original records to the concerned Tribunal forthwith.
19. Since the appellant and respondent No.1 are represented by their respective counsel and as the learned counsel for the appellant submits that he would also inform respondent No.3, they are directed to appear before the Tribunal on 17.06.2019 without expecting any separate notices from the said Court. The Tribunal to dispose the appeal in accordance with the observations made above and in accordance with law.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE DM/-