The Branch Manager, New India vs Shankar And Ors
2021 Latest Caselaw 3264 Kant

                             1




         IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 31ST DAY OF AUGUST, 2021

                         BEFORE

 THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

              MFA No.201811/2018 (MV)

BETWEEN

The Branch Manager
New India Assurance Co. Ltd.,
Gurukul Road, Hanamashetty Building
Vijayapura, through its Divisional Manager
Sangameshwar Colony, Gulbarga-585103
Presently represented by Sr. Divisional Manager
                                               ...Appellant

(By Sri Uday P.Honguntikar, Advocate)

AND

1.    Shankar S/o Ramu Gayakwad
      Age: 58 years, Occ: Nil
      R/o: Baba Nagar, Vijayapura
      Tq: & Dist: Vijayapura-586114

2.    Sakkubai W/o Shankar Gayakwad
      Age: 53 years, Occ: Household Work
      R/o: Baba Nagar, Vijayapura
      Tq: & Dist: Vijayapura-586114

3.    Deepa W/o Maruti Gayakwad
      Age: 23 years, Occ: Household Work
      R/o: Baba Nagar, Vijayapura
                              2




      Tq: & Dist: Vijayapura-586114

4.    Amol S/o Balakrishna Sangaonkar
      Age: 48 years, Occ: Business
      R/o: Deena Bandhu Housing Society
      Jaisingapur, Dist: Kolhapur,
      Maharashtra-416101
                                              ...Respondents

(By Sri Biradar Veeranagouda, Advocate for R1 & R2;
 Notice to R3 served)

    This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 Act, praying to set
aside the judgment and award dated 07.04.2018 in MVC
No.766/2015 passed by the II Addl. Senior Civil Judge &
MACT-VII at Vijayapura by allowing the appeal.

      This appeal coming on for orders, this day, the court
delivered the following:

                        JUDGMENT

This appeal is filed by the insurer challenging the

judgment and award dated 07.04.2018 in MVC

No.766/2015 passed by the II Addl. Senior Civil Judge &

MACT-VII at Vijayapura (for short, 'Tribunal').

2. The respondent Nos.1 to 3 herein were the

claimants in MVC No.766/2015. They claimed that Mr.

Maruthi was traveling in a Car bearing registration number

GA-02-J-6809 towards Vijayapur from Tikota. At about

4.00 p.m, the driver of a Car bearing registration number

MH-04-ET-3754 (henceforth referred to as offending

vehicle) drove it from the opposite direction in a rash and

negligent manner and dashed against the Car in which

Mr. Maruthi was traveling. As a result, he suffered injuries

and died at the spot. The claimants filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988 claiming

compensation from the owner and insurer of the offending

vehicle only.

3. The Tribunal after considering the evidence on

record held that the accident was caused due to composite

negligence of the two vehicles and therefore fixed the

liability at 50% on each of the two vehicles. However,

while directing the payment of compensation, the Tribunal

directed the insurer of the offending vehicle to pay the

entire compensation and recover 50% of the compensation

from the owner/insurer of the other vehicle who were not

arrayed as parties in the claim petition. It is this judgment

and award of the Tribunal that the insurer is aggrieved of

and has filed this appeal.

4. It is seen that the Tribunal had recorded a

finding of fact that both the drivers of both vehicles were

negligent and were responsible for the accident. Since it

was a head on collision, the Tribunal held that each of the

drivers contributed 50% towards the accident. Under the

circumstances, the judgment and award of the Tribunal

fixing the liability on the insurer of the offending vehicle to

pay the entire compensation and recover 50% of the

compensation from the owner/insurer of Car bearing

registration No.GA-02-J-6809 is thoroughly unjustified

and the same calls for interference. Though the Tribunal

noticed that the owner/insurer of the Car bearing

registration No.GA-02-J-6809 was not made party in the

claim petition, yet it directed the insurer of the offending

vehicle to pay the entire compensation and recover 50% of

the compensation from the owner/insurer of the Car

bearing registration No.GA-02-J-6809. If the claimants had

not arrayed the owner/insurer of the Car bearing

registration No.GA-02-J-6809, they have done so at their

peril. Once the Tribunal fixed the composite negligence on

both the drivers of the two vehicles, the insurer of the

offending vehicle was only liable to indemnify to the extent

of 50%. The concept of pay and recovery cannot be

stretched to compel the insurer of the offending vehicle to

pay and recover from a person who is not even arrayed in

the claim petition.

In that view of the matter, this appeal is allowed in

part and the impugned judgment and award passed by the

Tribunal is modified and it is declared that the

insurer/appellant is liable to pay 50% of the compensation

as awarded by the Tribunal along with interest @ 6% per

annum instead of 9% p.a. awarded by the Tribunal from

the date of claim petition till the date of realization.

The other portion of the judgment and award

regarding the quantum of compensation is left

undisturbed.

The amount in deposit is ordered to be transferred

for passing necessary orders.

Sd/-

JUDGE

BL