Karnataka High Court
Shridevi @ Neela W/O Mahalingappa ... vs Shivaji S/O Hindurao Patil on 16 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.21259/2013
C/W M.F.A. No.20248/2013 (MV)
IN MFA No.212 59/ 2013
BET WEEN
THE GENERAL MANAGER,
SHRIRAM GENERA L INSURANCE
COMPANY LIMITED,
E-8, EP IP, RIICO, SITAPU R,
JAIPU R, RAJASTAN-302022,
NOW REPRES ENTED BY ITS
AU THORIZ ED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C.KOLLOORI, ADVOCATE)
AND
1 . SMT.SHRIDEVI @ NEELA,
W/O MAHALINGA PPA @ KUMAR BU RLI,
AGE: 30 YEARS, OCC: HOU SEHOLD WORK.
2 . KUMAR ROHIT,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 11 YEARS, OCC: STUDENT .
3 . KUMAR RAHUL,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 10 YEARS, OCC: STUDENT .
4 . KUMAR VINAYA,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 8 YEARS, OCC: STUDENT.
2
5 . SRI.BASAPPA GU R UB ASAPPA BURLI,
AGE: 63 YEARS, OCC: NIL.
6 . SMT.GANGAWWA BASAPPA B URLI,
AGE: 58 YEARS, OCC: HOU SEHOLD WORK.
(RESPONDENT NO.2 TO 4 ARE B EING MINORS
REPRES ENTED B Y THEIR MOTHER NA TU RAL
GU ARDIAN RESPO NDENT No.1)
ALL ARE R/O THASILDAR PLOT,
SHIVAJ I NAGAR, NIPPAN I,
TQ: CHIKKODI, DIST: B ELAGAVI.
7 . SRI. SHIVAJ I S/O HINDU RAO PAT IL,
AGE: MAJOR, OCC: BUSINESS,
R/O.B AST WADE, TQ: KAGAL,
DIST: KOLHAPUR,
MAHARASTRA.
8 . SRI. DHAMRAI SATHEB RAO GAME,
AGE: MAJOR, OCC: BUSINESS,
R/O. DAMPU RI POST: LOHGAON,
TQ AND DIST: PRAB HANI.
...RESPONDENTS
(BY SRI. HARISH S.MAIGUR, ADVOCAT E FOR R1 TO R6;
R2 TO R4 MINORS REPRESENTED B Y R1;
SMT.GEET HA K.M. @ PAWAR, ADVOCAT E FOR R7)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 01.09.2 012 PASS ED IN
MVC No. 2429/ 2010 ON T HE FIL E OF THE PR IS IDING
OFFICER, FAST T RACK COURT- III A ND ADDIT IONAL MOTOR
ACCIDENT CLAIMS TRIB U NAL, B ELAGAVI, AWA RDING
COMPENSATION OF ` 10,36, 000/- WITH INTEREST AT THE
RATE OF 8% P.A. FROM THE DATE OF PET IT ION TIL L
REAL IZ ATION.
M.F.A.No.20248/ 2013
BET WEEN
1 . SMT.SHRIDEVI @ NEELA,
W/O MAHALINGA PPA @ KUMAR BU RLI,
AGE: 30 YEARS, OCC: HOU SEHOLD WORK.
3
2 . KUMAR ROHIT,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 11 YEARS, OCC: STUDENT .
3 . KUMAR RAHUL,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 10 YEARS, OCC: STUDENT .
4 . KUMAR VINAYA,
S/O MAHALINGA PPA @ KU MAR BU RLI,
AGE: 8 YEARS, OCC: STUDENT.
5 . SRI. B ASAPPA,
S/O GURUB ASAPPA BU RLI,
AGE: 63 YEARS, OCC: NIL.
6 . SMT.GANGAWWA BASAPPA B URLI,
AGE: 58 YEARS,
OCC: HOU SEHOLD WORK.
SINCE APP ELLANT S NO.2 TO 4 ARE MINORS,
R/B Y THEIR NATURAL MOT HER, NATURAL
GU ARDIAN, APPEL LANT NO.1-
SMT.SHRIDEVI M.B URLI.
ALL ARE R/O THASILDAR PLOT,
SHIVAJ I NAGAR, NIPPAN I,
TQ: CHIKKODI, DIST: B ELAGAVI.
...APPELLANTS
(BY SRI. HARISH S.MAIGUR, ADVOCAT E)
AND
1 . SHRI.SHIVAJ I S/O HINDU RAO PAT IL,
AGE: MAJOR, OCC: BUSINESS,
R/O.B AST WADE, TQ: KAGAL,
DIST: KOLHAPUR.
2 . THE GENERAL MANAGER,
SHRIRAM GENERA L INSU RANCE
COMPANY LIMITED,
R/O E/8, EPIP RIICO INDU STRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN-302022.
3 . SHRI DHAMRAI S/O SATHEB RAO GAME
AGE: MAJOR, OCC: BUSINESS,
4
R/O.DAMPU RI, PO: LOHGA ON,
TQ:DIST: PRAB HA NI.
...RESPONDENTS
(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE FOR R1;
SRI. NAGARAJ C.KOLLOOR I, ADVOCATE FOR R2;
NOT ICE T O R3 DIS PENSED WITH)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 01.09.2 012 PASS ED IN
MVC No.2429/ 2010 ON T HE FILE OF THE PR IS IDING
OFFICER, FAST T RACK COURT- III A ND ADDIT IONAL MOTOR
ACCIDENT CLAIMS TRIBU NAL, B ELAGAV I, PARTLY
ALLOWING THE CLAIM PET IT ION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
JUDGMENT
These two appeals arise out of the judgment and
award dated 01.09.2012 passed by the Additional Motor
Accid ent Claims Trib unal, Belag avi (hereinafter
referred to as the 'Tribunal', for brevity) in MVC
No.2429/2010 and therefore both the appeals are
taken up together and disposed off under a common
judgment.
2. Though these appeals are listed for
admission, with the consent of the learned counsels
appearing for the parties, the same are taken up for
final disposal. The parties to these appeals are
referred to by their rankings assigned to them before
the Tribunal for the sake of convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of these appeals
are:
On 03.08.2010 at about 12.15 p.m. the
deceased Mahalingappa @ Kumar was proceeding
from Nippani to Ponda in his motorcycle bearing
registration No.MH-11/X-9512 and when he reached
near Nippani-Murgod road, he stopped his motorcycle
as it was raining and stood below a tree. At that
time, a tempo bearing registration No.MH-09/L-6504
which was driven in a rash and negligent manner by
its driver dashed against a jeep bearing registration
No.MH-22/H-2665 which was coming from the
opposite side and as a result, the tempo turned turtle
and fell on Mahalingappa. In the said accident,
Mahalingappa suffered grievous injuries and though
he was shifted to the hospital, he succumbed to the
injuries on 05.08.2010. It is under these
circumstances, the claimants who are his dependants
had filed a claim petition under Section 166 of the
Motor Vehicles Act, 1988 (for short, the 'Act') as
against the owner and insurer of the tempo bearing
registration No.MH-09/L-6504 and also the owner of
the jeep bearing registration No.MH-22/H-2665. The
Tribunal had partly allowed the claim petition and
awarded compensation of `10,36,000/- with interest
at 8% per annum from the date of petition till
realization.
The Tribunal held that the drivers of both the
vehicles were negligent and had caused the accident.
The Tribunal further held that respondent Nos.1 to 3
are jointly and severally liable to pay the
compensation, however directed the 2 n d respondent-
insurer of the tempo bearing registration No.MH-09/
L-6504 to deposit the entire amount of compensation
before the Tribunal. Being aggrieved by the liability
saddled on it, the 2nd respondent-insurer has
preferred MFA No.21259/2013, while the claimants
have preferred MFA No.20248/2013 seeking
enhancement of the compensation.
4. Learned counsel for the insurer submits
that since the Tribunal had given a finding that the
accident was caused due to the negligence of the
drivers of both the vehicles, the Tribunal ought to
have apportioned the composite negligence so as to
enable one of the tortfeasors who pay's the
compensation amount to the claimants, to recover
the same from the other tortfeasor. He submits that
since the 3 r d respondent who is one of the tortfeasors
was a party before the Tribunal, the Tribunal should
have apportioned the composite negligence and it
should not have left open the same. He submits that
the charge sheet has been filed as against the drivers
of both the vehicles and there being a specific finding
by the Tribunal that the drivers of both the vehicles
are guilty of composite negligence, the Tribunal could
not have left open the apportionment of composite
negligence and should have fixed the inter-se liability
between the tortfeasors.
5. Per contra, learned counsel appearing for
the claimants submits that the claim petition has
been filed claiming compensation only as against
respondent Nos.1 and 2, though respondent No.3 one
of the tortfeasors was made as party in the claim
petition and therefore the Tribunal was justified in
not apportioning the composite negligence inter-se
between the tortfeasors. He further submits that the
3rd respondent was placed ex-parte before the
tribunal and therefore at any event the Tribunal could
not have apportioned the inter-se liability between
the two tortfeasors for want of necessary evidence.
He submits that the claimants are entitled to proceed
against any one of the tortfeasors for recovery of the
compensation amount and it is for the said party to
proceed against the other tortfeasor for recovery. He
also submits that the compensation awarded by the
Tribunal is on the lower side as the Tribunal had
failed to take into consideration the future prospects
of the deceased. He further submits that the
compensation awarded under the conventional heads
is also on the lower side. Accordingly, he prays to
allow his appeal and dismiss the appeal filed by the
insurer.
6. I have carefully considered the arguments
addressed on both sides and also perused the
material available on record.
7. The undisputed facts of the case are that
on 03.08.2010 when the deceased Mahalingappa was
standing under a tree, the offending tempo bearing
registration No.MH-09/L-6504 and the offending jeep
bearing registration No.MH-22/H-2665 dashed
against each other and in the said accident, the
deceased Mahalingappa had suffered grievous injuries
and subsequently he had succumbed to the same in
the hospital on 05.08.2010. The tempo bearing
registration No.MH-09/L-6504 was duly insured by
the 2 n d respondent-insurer while the jeep bearing
registration No.MH-22/H-2665 had no insurance
coverage as on the date of the accident. It is also not
in dispute that the claim petition is filed by the
claimants claiming compensation only as against the
owner and insurer of the tempo bearing registration
No.MH-09/L-6504 and though the owner of the jeep
bearing registration No.MH-22/H-2665 was made as a
party, no claim was made against him.
8. The police after investigation with regard to
the accident that had taken place on 03.08.2010
wherein the tempo bearing registration No.MH-09/
L-6504 and the jeep bearing registration No.MH-22/
H-2665 were involved, had filed charge sheet as
against drivers of both the vehicles. The Tribunal
after appreciating the oral and documentary evidence
available on record has rightly arrived at a conclusion
that the accident was caused due to the negligence of
the drivers of both the vehicles which were involved
in the accident i.e. the tempo bearing registration
No.MH-09/L-6504 and the jeep bearing registration
No.MH-22/H-2665.
9. Though the learned counsel for the insurer
of the offending tempo bearing registration
No.MH-09/L-6504 has submitted that since the
Tribunal had given a finding that the accident was
caused due to the negligence of the drivers of the
offending vehicles, the Tribunal ought to have
apportioned the composite negligence inter-se
between the two tortfeasors, since the claim petition
has been filed claiming compensation only as against
the owner and insurer of the offending tempo bearing
registration No.MH-09/L-6504, the Tribunal had no
jurisdiction to inter-se apportion the composite
negligence of the two tortfeasors who were involved
in the accident. In a case of composite negligence
where the accident is caused as a result of collision
of two vehicles, it is open for the claimant to file a
claim petition as against any one of the tortfeasors or
against both the tortfeasors. In the present case, the
claimants have filed a claim petition under Section
166 of the Act only as against the owner and insurer
of the offending tempo bearing registration No.MH-
09/ L-6504 and though the owner of the jeep was
made as a party, no claim was made as against him.
Therefore, under the said circumstances it was not
open for the Tribunal to apportion the inter-se
liability between the two joint tortfeasors. Further as
rightly contended by the learned counsel for the
claimants, the 3 r d respondent was placed ex-parte
before the Tribunal and therefore the Tribunal in the
absence of necessary evidence could not have
apportioned the composite negligence inter-se
between the parties. It is a settled principle of law
that the inter-se liability between the two tortfeasors
is determined only for the purpose of enabling one of
the tortfeasors who pays the compensation to the
claimants to recover the same from other tortfeasors.
The Hon'ble Supreme Court has considered this
aspect of the matter in detail in the judgment
reported in 2015 ACJ Page 1441 in the case of
Khenyei V/s New India Assurance Co.Ltd. and
others, wherein it has been held 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."
10. In the case on hand, the Tribunal has given
a clear finding that the accident in question was
caused due to the negligence of the drivers of both
the vehicles i.e. tempo bearing registration
No.MH-09/L-6504 and the jeep bearing registration
No.MH-22/H-2665. Under the circumstances having
regard to the principles laid down by the Hon'ble
Supreme Court in the case of Khenyei, it is open for
the insurer of the offending tempo bearing
registration No.MH-09/L-6504 to initiate independent
proceedings as against the owner of the offending
jeep bearing registration No.MH-22/H-2665 for
apportionment and determination of the extent of
composite negligence of the drivers of two vehicles
and thereafterwards recover the same from him.
Under the circumstances, I find no merit in the
appeal filed by the insurer challenging the order of
the Tribunal insofar as it relates to saddling the
liability to pay the compensation on the insurer of
the offending tempo bearing registration No.MH-09/
L-6504.
11. Insofar as the quantum of compensation
awarded to the claimants is concerned, the deceased
was aged about 35 years as on the date of accident.
Though he had contended that he was a businessman
and having an income of `10,000/- per month, he
had failed to prove his income before the Tribunal
and inspite of it, the Tribunal had taken his income at
`6,000/- per month. Since the accident is of the year
2010, having regard to the income chart determined
by the Karnataka State Legal Services Authority for
the purpose of disposal of motor accident claims
cases before the Lok Adalath, the notional income of
the deceased was required to be taken at `5,500/-
per month and 40% of said income is required to be
taken into consideration towards loss of his future
prospects and out of the same, 1/4 t h was required to
be deducted towards his personal expenses. Having
regard to the age of the deceased, the proper
multiplier applicable would be '16'. In the said event,
the claimants would be entitled for a total
compensation of `11,08,000/- towards loss of
dependency. The claimants had spent a sum of
`27,000/- towards medical expenses and they are
entitled for reimbursement of the same. In addition
to the same, the claimants are entitled for a sum of
`40,000/- each towards loss of consortium and loss
of filial love and affection. The claimants are also
entitled for further sum of `30,000/- towards loss of
estate and funeral expenses. Therefore under the
conventional heads, the claimants are entitled for a
total compensation of `2,70,000/-. In all, the
claimants are entitled for a compensation of
`14,05,800/- as against `10,36,000/- awarded by the
Tribunal. The enhanced amount of compensation shall
carry interest at 6% per annum from the date of
petition till realization.
12. The order passed by the Tribunal insofar as
it relates to apportionment, disbursement and deposit
etc., remains unaltered and the same would be
applicable even for the enhanced amount of
compensation.
13. The amount in deposit in MFA
No.21259/2013 is directed to be transferred to the
Tribunal for the purpose of disbursement.
14. The 2 n d respondent-insurer shall deposit the
balance compensation amount with interest before
the Tribunal within a period of six weeks from the
date of receipt of certified copy of this order and is at
liberty to initiate separate independent proceedings
against the owner of the offending jeep bearing
registration No.MH-22/H-2665 for determination of
the extent of composite negligence and thereafter
recover the same from him. Accordingly, the appeal
filed by the insurer is dismissed and the appeal filed
by the claimants is partly allowed.
Sd/-
JUDGE
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