The Manager vs Shruti Umesh Kamble
2022 Latest Caselaw 9205 Kant

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                                                     MFA No. 101222 of 2016


                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                           DATED THIS THE 21ST DAY OF JUNE, 2022

                                          PRESENT
                          THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
                                            AND
                          THE HON'BLE MR JUSTICE P.KRISHNA BHAT
                        MISC. FIRST APPEAL NO. 101222 OF 2016 (MV-D)
                   BETWEEN:

                        THE MANAGER,
                        ROYAL SUNDARAM ALLIANCE
                        INSURANCE CO. LTD.,
                        DB PLAZA, 3RD FLOOR, 47,
                        WHITES ROAD, CHENNAI,
                        TAMIL NADU-600014,
                        REPTD., BY ITS AUTHORIZED
                        SIGNATORY, ROYAL SUNDARAM ALLIANCE
                        INSURANCE CO. LTD.,
                        IIIRD FLOOR, SUBRAMANIYAM
                        BUILDING NO.1, CLUB HOUSE
                        ROAD, CHENNAI.

                                                               ...APPELLANT

                   (BY SRI. G N RAICHUR, ADVOCATE)

                   AND:
Digitally signed
by JAGADISH T
R
Location: HIGH     1.   SHRUTI UMESH KAMBLE,
COURT OF
KARNATAKA,
DHARWAD
                        AGE:24 YEARS, OCC:HOUSEHOLD,
Date:
2022.06.24              R/O: GOUSIDDANAMADDI, ATHANI,
10:04:25 +0530
                        TQ: ATHANI, DIST: BELAGAVI.

                   2.   SADASHIV CHANDRAPPA KAMBALE,
                        AGE:74 YEARS, OCC:HOUSEHOLD,
                        R/O: GOUSIDDANMADDI, ATHANI,
                        TQ: ATHANI, DIST: BELAGAVI.
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                                     MFA No. 101222 of 2016


3.   RAMESH SHANKAR BURUD,
     AGE:42 YEARS, OCC:BUSINESS,
     R/O: ASHIRWAD NILAYA,
     RENUKA NAGAR, MIRAJ ROAD,
     ATHANI, TQ: ATHANI,
     DIST: BELAGAVI.
     (OWNER OF INDICA CAR BEARING
     NO. TEMPORARY PASSING NO.KA-22/T-2499)

                                             ...RESPONDENTS
(BY SRI. SHARAD V MAGADUM & SRI. H.R. DESHPANDE,
ADVOCATES FOR R1 & R2) (R3-SERVED)

     THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT
1988, AGAINST THE JUDGMENT & AWARD DATED:09.02.2016,
PASSED IN MVC.NO.1838/2012 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI, AWARDING
THE COMPENSTION OF RS.5,20,006/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
COMPLETE REALISATION.
     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
P. KRISHNA BHAT J., DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is at the instance of the Insurance

Company calling in question the correctness of judgment

and award dated 9.2.2016 in MVC No.1838/2012 passed

by the learned Addl. Senior Civil Judge & Addl. MACT,

Athani (for short, 'MACT'), awarding a compensation of

Rs.5,20,006/- with interest thereon at 6% per annum from

the date of petition till date of payment.

MFA No. 101222 of 2016

2. Brief facts are that on 1.8.2010, at about 5.30

p.m., while deceased Umesh Kamble was driving a Car

bearing TP registration No.KA-22/T-2499 belonging to

respondent No.3 herein and insured with the appellant-

insurer, near Farmhouse of Shankar Kandugol of

Shindikurbet village on Ghataprabha-Gokak road, driver of

Truck bearing registration No.KA-27/6446 drove the same

in a rash and negligent manner and in high speed and

dashed against the Car resulting in death of the deceased.

3. The claim petition filed by the claimants was

resisted by the appellant/Insurance Company by filing its

detailed written statement and respondent No.3 remained

exparte.

4. During trial, claimant No.1 examined herself as

PW1 and Exs.P1 to P9 were marked. The Insurance

Company examined one of it's officials as RW1 and Ex.R1

and R2 were marked.

5. After hearing the learned counsel on both sides

and perusing the material on record, the learned MACT

MFA No. 101222 of 2016

allowed the claim petition in part by awarding

compensation as stated above.

6. Learned counsel for the appellant/Insurance

Company strenuously contended that the claim petition

filed only against owner and insurer of the car in question

is liable to be dismissed for non-joinder of necessary

parties. He submitted that the accident resulting in death

of the deceased had occurred on account of collision

between two vehicles and therefore, owner and insurer of

Truck in question being not made a party, petition is not

maintainable. He further contended that charge

sheet(Ex.P7) has been filed against the driver of Truck as

well as deceased and since one of the tortfeasors having

not been made a party, petition was filed in an improper

manner. He contended that arising from the same

accident, several other claim petitions have been filed in

MVC Nos.1410/2011, 1411/2011 & 1412/2011 before the

learned MACT, Belgaum and in the said claim petition, the

competent MACT had returned a finding that there was a

MFA No. 101222 of 2016

composite negligence on the part of both drivers including

the deceased. He further contended that since the

deceased himself was driver of the car involved in the

accident, there was contributory negligence on his part

and therefore, compensation awarded is required to be

reduced to the extent proportionate to the negligence of

deceased. He also submitted that the compensation

awarded by the learned MACT is on the higher side and it

is required to be reduced. Therefore, he submitted that

the appeal is required to be allowed.

7. Learned counsel for the respondents/claimants,

per contra, contended that the claim petition having been

filed under Section 163-A of the Motor Vehicles Act, 1988

(for short, 'MV Act'), negligence of the deceased is

immaterial and irrelevant. He submitted that since the

accident resulting in death of the deceased had taken

place by the use of Car in question, the claimants are

entitled to award of compensation as per Second Schedule

attached to MV Act. It was his submission that in a case

MFA No. 101222 of 2016

of this nature, neither the negligence nor contributory

negligence has relevance insofar as award of

compensation is concerned. Therefore, there is no merit

in this appeal and it is liable to be dismissed.

8. We have given our anxious consideration to the

submissions made on both sides and we have perused the

records.

9. A perusal of the records discloses that the

claimants who are the widow and parents of the deceased

had filed claim petition under Section163-A of the MV Act.

There is also no dispute as correctly noted from the

pleadings by the learned MACT that the

appellant/Insurance Company did not dispute the fact that

the deceased Umesh was driving the insured car at the

time of the accident and it's only contention was, the

accident happened due to negligence of the deceased

himself and therefore, appellant is not liable to pay the

compensation awarded. The claim petition being founded

under Section 163-A of the MV Act, it is sufficient to

MFA No. 101222 of 2016

maintain the claim petition if the claimants show that the

accident resulting in death or personal injury had taken

place "arising out of the use of motor vehicle" and it is not

necessary for the claimants further to show that there was

any negligence on the part of the driver of the vehicle in

question. It is known as the claim petition based on 'no

fault liability'. It is useful to refer to Section 163-A of the

MV Act which reads as under:

"163-A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."

(emphasis supplied)

10. If any authorities are required for the said

proposition, immediate reference may be made to the

decision of the Hon'ble Apex Court in United India

Insurance Company Ltd. Vs. Sunil Kumar & Another1,

wherein it is observed as under::

(2019) 12 SCC 398

MFA No. 101222 of 2016

" 1. Unable to agree with the reasoning and the conclusion of a two-Judge Bench of this Court in National Insurance Co. Ltd. Vs. Sinitha2a coordinate Bench of this Court by order dated 29.10.2013 has referred the instant matter for a resolution of what appears to be the following question of law:

"whether in a claim proceeding under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") it is open for the insurer to raise the defence/plea of negligence?"

9. For the aforesaid reasons, we answer the question by holding that in a proceeding under Section 163-A of the Act, it is not open for the insurer to raise any defence of negligence on the part of the victim."

11. In view of the above, the contention of the

learned counsel for the appellant/Insurance Company that

since the deceased was himself negligent in causing the

accident, the claimants are not entitled to award of any

compensation is misconceived and it is rejected.

12. The learned counsel for the appellant-Insurance

Company contended that, admittedly, the accident

resulting in death of the deceased on account of which

claim petition is filed had occurred due to collision between

two vehicles namely insured car bearing TP registration

No.KA-22/T-2499 and Truck bearing registration No.

(2012) 2 SCC 356

MFA No. 101222 of 2016

KA-27/644 and liability to pay compensation having arisen

due to composite negligence on the part of the deceased

and driver of the offending Truck, without owner and

insurer of the truck being made a party to the

proceedings, the claim petition is incompetent and same is

liable to be dismissed. The contention as put-forth by the

learned counsel is no longer res-integra in view of decision

of Hon'ble Apex Court in Khenyei Vs. New India

Assurance Company Limited & Others3. The question

posed by the Hon'ble Apex Court in the said decision for its

consideration is as under:

"1. In the appeals, the main question which arises for consideration is, whether it is open to a claimant to recover entire compensation from one of the joint tort feasors, particularly when in accident caused by composite negligence of drivers of trailor-truck and bus has been found to 2/3rd and 1/3rd extent respectively."

Hon'ble Supreme Court answered the same as

follows:

3. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort

(2015) 9 SCC 273

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MFA No. 101222 of 2016

feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court.

However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

4. In Law of Torts, 2nd Edn., 1992 by Justice G.P. Singh, it has been observed that in composite negligence, apportionment of compensation between two tort feasors is not permissible.

5. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006, the author has referred to Performance Cars Ltd. v. Abraham [1962 (1) QB 33], Baker v. Willoughby 1970 A.C. 467, Rogers on Unification of Tort Law: Multiple Tortfeasors; G.N.E.R. v. Hart [2003] EWHC 2450 (QB), Mortgage Express Ltd. v. Bowerman & Partners 1996 (2) All E.R. 836 etc. and observed thus :

"WHERE two or more people by their independent breaches of duty to the claimant cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them

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MFA No. 101222 of 2016

for the full amount of his loss, and each is said to be jointly and severally liable for it. If the claimant sues defendant A but not B and C, it is open to A to seek "contribution" from B and C in respect of their relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It may be greatly to the claimant's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. Even where all participants are solvent, a system which enabled the claimant to sue each one only for a proportionate part of the damage would require him to launch multiple proceedings, some of which might involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the "easiest target". The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by certain professional bodies, who have argued instead for a regime of "proportionate liability" whereby, as against the claimant, and not merely among defendants as a group, each defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal injury claims, this has occurred in some

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MFA No. 101222 of 2016

American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Dept of trade and Industry in 1996 led to the conclusion that the present law was preferable to the various forms of proportionate liability."

11. A Full Bench in KSRTC v. Arun @ Aravind (supra) while answering aforesaid questions has observed that it was a case of composite negligence and the liability of tort feasors was joint and several. Hence, even if there is non- impleadment of one of tort feasors, the claimant was entitled to full compensation quantified by the Tribunal. The Full Bench referred to the decision of a Division Bench of the Gujarat High Court in Hiraben Bhaga & Ors. v. Gujarat State Road Transport Corporation [1982 ACJ (Supp.) 414 (Guj.)] in which it has been laid down that it is entirely the choice of the claimant whether to implead both the joint tort feasors or either of them. On failure of the claimant to implead one of the joint tort feasors, contributory liability cannot be fastened upon the claimant to the extent of the negligence of non-impleaded joint tort feasors. It is for the joint tort feasors made liable to pay compensation to take proceedings to settle the equities as against other joint tort feasors who had not been impleaded. It is open to the impleaded joint tort feasor to sue the other wrong doer after the decree or award is given to realize to the extent of others' liability. It has been laid down that the law in Ganesh's case (supra) has been rightly laid down and it is not necessary to implead all joint tort feasors and due to failure of impleadment of all joint tort feasors, compensation cannot be reduced to the extent of negligence of non- impleaded tort feasors. Non- impleadment of one of the joint tort feasors is not a defence to reduce the compensation payable to the claimant. In our opinion, the law appears to have been correctly stated in KSRTC v. Arun @ Aravind (supra).

14. In our opinion, the law laid down by the Madhya Pradesh High Court in Smt. Sushila

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MFA No. 101222 of 2016

Bhadoriya (supra) is also in tune with the decisions of the High Court of Karnataka in Ganesh (supra) and Arun @ Aravind (supra). However, at the same time, suffice it to clarify that even if all the joint tort feasors are impleaded and both the drivers have entered the witness box and the tribunal or the court is able to determine the extent of negligence of each of the driver that is for the purpose of inter se liability between the joint tort feasors but their liability would remain joint and several so as to satisfy the plaintiff/claimant.

22. What emerges from the aforesaid discussion is as follows:

22.1 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.

22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3 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."

(underlined by us)

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MFA No. 101222 of 2016

13. In view of the above, the contention of the

learned counsel for the appellant-insurance company that

claim petition as against only one of the joint tortfeasors in

cases if composite negligence is not maintainable is

unsustainable.

14. What remains further to be decided in this

appeal is, whether the compensation awarded is not in

accordance with law?

15. Learned MACT had held that the deceased who

was a driver of the Car in question was earning an annual

income of Rs.40,000/-. The accident took place on

1.8.2010. In view of the same, we are not inclined to

disagree with the finding of the learned MACT that the

deceased was earning Rs.40,000/- per annum by working

as driver. In the original Driving License (Ex.P9), Date of

Birth of the deceased is shown as 31.7.1989. The said

document is issued by a Public Authority and obviously we

presume that it had examined necessary supporting

documents before making necessary entry in the same

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MFA No. 101222 of 2016

regarding Date of Birth. We therefore have no reason to

disagree with the finding of the learned MACT that his date

of birth is 31.7.1989 and the accident having taken place

on 1.8.2010, he was aged 21 years at the time of the

accident.

16. As per Second Schedule of the MV Act (under

Section 163-A), for the age group above 20 years and not

exceeding 25 years, appropriate multiplier is 17 and 1/3rd

of the income of the deceased has to be deducted towards

his personal expenses. Accordingly, the loss of

dependency is required to be recomputed as under:

Rs.40,000 -1/3 = Rs.26,667 x 17= Rs.4,53,339/-

17. Further, towards funeral expenses, Rs.2,000/-

is required to be awarded, a sum of Rs.5,000/- is required

to be awarded under the head of loss of spousal

consortium and Rs.2,500/- is required to be awarded

towards loss of estate. Thus, in all, the claimants are

entitled to be awarded a compensation of Rs.4,62,839/-

as against Rs.5,20,006/- awarded by the learned MACT.

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MFA No. 101222 of 2016

18. In view of the above, the appeal filed by the

Insurance Company is allowed in part. In modification of

the impugned award, the claimants would be entitled to

total compensation of Rs.4,62,839/- as against

Rs.5,20,006/- awarded by the learned MACT. Award of

rate of interest at 6% is maintained. The said

compensation amount be deposited before the learned

MACT within a period of six weeks from today. The

amount in deposit before this Court be transmitted to the

learned MACT along with TCR in MVC No.1838/2012. No

order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

JTR