Karnataka High Court

Icici Lombard Motor Ins.Co,Ltd vs Shivaram S/O Arjun Road And Ors on 23 March, 2022

Bench: Ashok S. Kinagi

                               1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 23RD DAY OF MARCH, 2022

                           BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                MFA No.33024/2013 (MV)

Between:

ICICI Lombard General Ins. Co. Ltd.,
Through its Claim Manager, 1st Floor,
Garaladinni Complex, Opp: SNT Talkies,
Lingasugur Road, Raichur
Now represented by Manager
Legal ICICI Lombard Gen. Ins. Co. Ltd.
Kothari Complex, Court Road,
Gulbarga.
                                            ... Appellant
(By Sri.C.S.Kalburgi, Advocate)

And:

1.     Shivaram S/o Arjun Rao,
       Age: 28 years, Occ: Conductor,
       R/o Askihal,
       Tq. & Dist: Raichur-584 101.

2.     Jambayya S/o Edappa,
       Age: Major, Occ: Owner of Tractor
       Bearing Reg.No.KA-36-TA-5712,
       R/o Gunjalli, Tq: Raichur-584 101.

3.     United India Insurance Co. Ltd.,
       Divisional office, Gandhi Circle,
                               2




      Raichur-584 101.

4.    Pragathi Gramin Bank,
      Through its Manager, Branch Office
      Shaktinagar Raichur-584 101.
                                           ... Respondents

(By Smt. Anuradha M.Desai, Advocate for R3;
 Notice to R1, R2 & R4 are served)

      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act praying to call for the records and
set aside the judgment and award dated 11th October-
2013 passed by the Court of I-Addl. District Judge & MACT
Raichur in MVC No.535/2011 and to pass such other orders
as this Court deems fit under the facts and circumstances
of the case, including the costs.


      This appeal coming on for Hearing, this day, the
Court delivered the following:-


                        JUDGMENT

This appeal is filed by Insurance Company under

Section 173(1) of the Motor Vehicles Act (for short

'the Act') aggrieved by the judgment and award dated

11.10.2013 passed by I-Additional District Judge and

Motor Accident Claims Tribunal, Raichur, (for short

hereinafter referred to as 'the Tribunal') in MVC

No.535/2011.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is respondent No.3,

respondent No.1 is the petitioner and respondent

Nos.2 to 4 are respondent Nos.1, 2 and 4 before the

Tribunal.

3. Facts giving rise to filing of this appeal are

as under:

On 06.03.2011 the deceased-Prakash was riding

his motorcycle bearing registration No.KA-36/W-0203

and the petitioner was the pillion rider. Near

Basaveswara circle, tractor bearing No.KA-36/TA-5712

was parked without any precautions. Due to which,

the rider of the motorcycle without noticing the parked

tractor dashed to the tractor from back side and due

to the actionable negligence of the driver of the

tractor, rider-Prakash and the petitioner sustained

grievous injuries. Prakash succumbed to the injuries

on the way to the hospital. The petitioner contended

that he has spent huge amount for treatment. Hence,

the petitioner filed claim petition under Section 166 of

the Act seeking compensation on account of the

injuries sustained in the road traffic accident.

4. Respondent No.1-owner of the tractor

denied that the accident was due to his negligence

and contended that it was due to the negligence of the

rider of the motorcycle and he had parked the tractor

after taking all precautions of parking. It is contended

that the petition is bad for non-joinder of owner and

insurer of motorbike. He denied the age, occupation

and income of the petitioner.

5. Respondent No.2-United India Insurance

Company contended that the tractor and trailer is not

insured with it. It is contended that the petition is bad

for non-joinder of owner and insurer of motorcycle.

It is contended that the accident was due to

negligence of the rider of the motorcycle and disputed

the age, occupation and income of the petitioner.

6. Respondent No.4 filed written statement

contending that it is not a necessary party and it is

not liable to answer the claim of the petitioner and

prayed to dismiss the claim petition.

7. The Tribunal on the basis of the pleadings

of the parties framed the issues and recorded the

evidence. In order to prove the case, petitioner

examined himself as PW.1 and got marked the

documents as Exs.P1 to P59. Respondent No.2

examined its officer as RW.1 and on behalf of

respondent No.3, Manager was examined as RW.2 and

got marked the documents as Exs.R1 to R3.

8. The Tribunal, after recording the evidence

and considering the material on record, held that the

petitioner met with accident and sustained injuries

and the accident occurred due to parking of tractor

negligently without taking precautions and due to the

actionable negligence of respondent No.1 and further

held that the petitioner is entitled for compensation

and awarded compensation of Rs.96,000/- with

interest at the rate of 6% per annum from the date of

petition till the date of deposit and held that

respondent No.1-owner of the tractor and respondent

No.3-insurer of the motorbike are liable to pay

compensation and directed them to pay entire

compensation.

9. Respondent No.3 being aggrieved by the

judgment and award passed by the Tribunal has filed

this appeal.

10. Heard the learned counsel for respondent

No.3-ICICI Lombard General Insurance Company

Limited and learned counsel for respondent No.2-

United India Insurance Company Limited. Inspite of

service of notice, none appears for the petitioner and

other respondents.

11. Learned counsel for appellant/respondent

No.3 submits that the owner of the motorcycle was

not made as party in the claim petition. Hence, the

claim petition is not maintainable. He further submits

that the rider of the motorcycle was holding LMV

licence, but he was riding two wheeler. On these two

grounds, he prays to allow the appeal.

12. Learned counsel appearing for respondent

No.2 supports the impugned judgment and award

passed by the Tribunal and prays to dismiss the

appeal.

13. I have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for consideration is with

regard to liability.

14. The occurrence of the accident and the

injuries sustained by the petitioner in the said accident

is not in dispute. In order to prove that the accident

has occurred due to rash and negligent driving of the

driver of the tractor, the petitioner has produced copy

of charge sheet which is marked as Ex.P3. Ex.P3

discloses that the tractor was parked without taking

precautions and due to actionable negligence of

respondent No.1, rider of the motorcycle dashed to

the tractor from back side and due to which, the rider

of the motorcycle succumbed to the injuries and

petitioner sustained injuries. Ex.P3 further discloses

that two vehicles are involved in the accident and

charge sheet is filed against owner of the tractor and

the rider of the motorcycle. The Tribunal considering

the material on record has fastened liability of 50% on

the insurer of the motorcycle and 50% on the owner

of the tractor. Learned counsel for respondent No.3

submits that owner of the motorcycle was not made

as party. Hence, claim petition filed by the petitioner

is not maintainable. The said question was considered

by the Hon'ble Apex Court in the case of Khenyei vs.

New India Assurance Co., Ltd., and others

reported in (2015) 9 SCC 273 wherein, at

paragraph-22, it is held that:

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

22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire

compensation as liability of joint tortfeasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors 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 tortfeasors 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 tortfeasors 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 tortfeasor can recover the amount from the other in the execution proceedings.

22.4. 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 tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."

15. The Hon'ble Apex Court in the aforesaid

case held that it is open for the claimant to recover

the entire compensation from one of the joint tort-

feasor particularly when accident is caused by

composite negligence. In the present case, the

petitioner has arrayed the owner of the tractor and

insurer of tractor and the insurer of the motorcycle.

The Tribunal after considering the material on record

was justified in holding that respondent No.1 i.e.,

owner of the tractor and respondent No.3 i.e., insurer

of the motorcycle are jointly and severally liable to

pay compensation and also justified in directing