Bombay High Court
Kunta Karbhari Bachate And Ors vs Suresh Tulshiram Rathod And Ors on 17 January, 2024
2024:BHC-AUG:1605
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3409 OF 2019
1. Kunta w/o Karbhari Bachate
age 29 years, occ. Household
r/o Wadgaon (Bachate) Tq. Sonpeth
Dist. Parbhani, at/p r/o Gour
Tq. Purna, Dist. Parbhani
2. Vaishnavi d/o Karbhari Bachate
age 09 years, occ. Minor
u/g of real mother
Kunta Karbhari Bachate i.e.
Petitioner No. 1
r/o as above.
3. Kamalbai w/o Balasaheb Bachate
age 53 years, occ. Household
r/o Wadgaon (Bachate), Tq. Sonpeth
Dist. Parbhani .. Appellants
Versus
1. Suresh s/o Tulshiram Rathod
age 37 years, occ. Agril.,
r/o Gangalwadi, Post Siddheshwar
Tq. Aundha, Dist. Hingoli
2. The ICICI Lombard General
Insurance Co. Branch at
Alaknanda Complex, II floor
Adalat Road, Aurangabad
3. Balaji s/o Trimbka Dhole } Deleted as per Court order
dated 27.09.2019
CORAM : R. M. JOSHI, J.
DATE : 17th JANUARY, 2024.
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JUDGMENT :
1. Admit.
2. By consent, heard finally at admission stage.
3. This appeal under Section 173 of Motor Vehicles Act
takes exception to the impugned judgment and award dated 27 th
October, 2017 passed in MACP No. 562/2011 on limited ground that
the learned Tribunal ought not to have directed the respondents to
severally pay compensation of 50%.
4. It is the contention of learned counsel for the appellants
that admittedly, the deceased was pillion rider and there was no
finding recorded by the Tribunal about he contributing in the
occurrence of the accident. It is submitted that the Tribunal has
held composite negligence of both the vehicles involved in the
accident for occurrence thereof. It is his submission that by relying
upon the judgment in the case of Khenyei vs. New India Assurance
Company Limited and others, (2015) 9 Supreme Court Cases 273,
that in case of composite negligence, it is open for the claimant to
claim compensation jointly and severally and it is his choice to seek
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the same from all or any one of them. According to him, learned
Tribunal has committed error in directing respondent no. 1 and 2
jointly and severally to pay 50% amount of compensation and
respondent No. 3 remaining 50%.
5. Learned counsel for insurer opposed the contention by
drawing attention of this Court to the evidence on record which
indicates that the deceased was third pillion rider on the motorcycle
which according to him, shows that it was within knowledge of
deceased that there is every possibility of occurrence of accident
more particularly when the rider was drunk. It is thus his
contention that the impugned judgment and award does not deserve
any interference/modification.
6. There is no dispute about the fact that on 13 th
September, 2010, an accident occurred involving motorcycle bearing
registration No. MH 38 K 9317 and Maruti car bearing registration
No. MH 01 R 5473 owned by original respondents No. 3 and 1
respectively. There is further no dispute about the fact that the
Maruti car was duly insured with respondent No. 2 under valid
insurance policy at the relevant time. The learned Tribunal has
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taken into consideration evidence on record and though it is observed
that deceased was third pillion rider on the motorcycle, has not held
his contributory negligence in the occurrence of the accident in
question. In absence of any challenge to the refusal on the part of
the Tribunal to hold deceased contributory negligent to the
occurrence of the accident by filing appeal or cross objection, it is not
open for the insurer to challenge the same now. Contention raised by
learned counsel for insurer deserves no consideration.
7. The impugned judgment clearly shows that the Tribunal
has held both vehicles have contributed in the occurrence of the
accident and the said negligence is determined to the extent of 50%.
In the facts and circumstances of the case, the said finding recorded
by the learned Tribunal is fully justified and deserves no interference.
8. The question however that arises for consideration is as
to whether it was open for the Tribunal to apportion liability to the
extent of 50% jointly and severally on respondents No. 1 and 2 and
remaining 50% on respondent No. 3. The Hon'ble Apex Court in case
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of Khenyel (supra) has held that there is difference between
contributory and composite negligence. In case of contributory
negligence, a person who has himself contributed to the accident
cannot claim compensation for the injuries sustained by him in the
accident to the extent of his own negligence whereas in case of
composite negligence, a person who has suffered has not contributed
to the accident but due to the outcome of combination of negligence
of two or more other persons. In the instant case, as rightly held by
the learned Tribunal, the deceased has not contributed to the
occurrence of the accident. Thus, it is a case of composite
negligence. In such circumstances, it is open for the claimants to
seek entire damages as per their choice from all joint tortfeasors or
anyone of them. This Court finds substance in the challenge to the
impugned judgment and award to this extent. Hence, award deserves
to be modified to that effect.
9. Respondents are jointly and severally liable to pay
compensation of Rs. 12,40,000/- (Rs. Two Lac Forty Thousand)
including No Fault Liability amount, to the appellants along with
interest @ 7.5% from the date of application till realization of the
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amount. Finding recorded by Tribunal to the extent of contributory
negligence of opponents is maintained. Appeal is disposed of in
aforestated terms.
( R. M. JOSHI)
Judge
dyb
