Mahibubsab S/O Mammadasab Gogi vs The Divisional Controller Nwkrtc ...
2022 Latest Caselaw 5697 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 30TH DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
                MFA No.30391/2013 (MV)

Between:
Mahibubsab S/o Mammadasab Gogi,
Age: 30 years, Occ: Hotel Business,
R/o Navnagar, Bagalkot-587 101.
                                           ... Appellant

(By Sri Harshavardhan R.Malipatil, Advocate)
And:
1.     The Divisional Controller,
       NWKRTC Bagalkot,
       S.S. Through Division Controller,
       NEKRTC, Bijapur Division,
       Bijapur-586 101.
2.     Shrishail S/o Basalingappa Koti,
       Age: Major, Occ: Business,
       R/o Talamatti, Tq: Bilagi,
       Dist: Bagalkot-587 101.

3.    The Divisional Manager
      Sri Ram General Insurance Co., Ltd.,
      Summons served through
      Sriram General Insurance
      Co., Ltd., Bijapur-586101
                                         ... Respondents
(By Sri Santosh Biradar, Advocate for R1;
 Smt. Sangeeta Bhadrashetty, Advocate for R3;
 Notice to R2 served)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to allow this appeal and
award   compensation     of    Rs.7,50,545/-      (excluding    the
amount awarded by the Tribunal) along with interest @
12% P.A. by fastening the liability on all the respondents,
by modifying the judgment and award of the MACT-IX,
Basavana      Bagewadi        dated     23.11.2012        in    MVC
No.166/2010.


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


                         JUDGMENT

This appeal is filed by the petitioner under Section

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

challenging the judgment and award dated 23.11.2012

passed by the Senior Civil Judge and Motor Accident

Claims Tribunal No.IX, Basavana Bagewadi, (for short

hereinafter referred to as 'the Tribunal') in MVC

No.166/2010.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is the petitioner and the

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are as

under:

On 07.02.2010 at about 3.30 p.m., the petitioner

was traveling in the lorry bearing No.KA.29/9183 from

Gaddanakeri cross to Navanagar Bagalkot. When the

said lorry came near Hamalara Colony on Bagalkot-

Kaladagi road, the driver of the bus bearing

No.KA.29/F.786 was driving the bus in a high speed and

in a rash and negligent manner and came from opposite

direction and dashed to the lorry and caused the

accident. The petitioner sustained grievous injuries in

the said accident and spent huge amount for medical

treatment. It is further contended that he has suffered

permanent disability. Hence, the petitioner filed claim

petition under Section 166 of the Act claiming

compensation on account of the injuries in the road

traffic accident.

4. Respondent No.1 filed written statement

denying the averments made in the claim petition and

denied the age, occupation and income of the petitioner

and also denied the manner of the accident. It is

contended that the accident occurred due to rash and

negligent driving of the driver of the truck bearing

No.KA.29/9183 and respondent No.1 is not liable to pay

compensation to the petitioner. Hence, respondent No.1

prayed to dismiss the claim petition against respondent

No.1.

5. Respondent No.2 filed written statement

denying the averments made in the claim petition. It is

contended that the accident occurred due to rash and

negligent driving of the driver of the bus bearing

No.KA.29/F.786. It is also contended that his vehicle

was insured with respondent No.3 and policy was in

force as on the date of the accident and therefore,

respondent No.3 is liable to pay compensation to the

petitioner and prayed to dismiss the claim petition.

6. Respondent No.3 filed written statement

denying the averments made in the claim petition. It

denied the date, time and place of accident.

Respondent No.3 denied the age, occupation and income

of the petitioner. It is contended that the petitioner was

traveling in the goods carrying truck as unauthorized

passenger. Hence, the owner of Truck violated the

policy condition and hence, the petitioner is not liable to

pay compensation to the petitioner and prayed to

dismiss the claim petition against respondent No.3.

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 P55. Respondent No.1

examined the driver of the bus as RW.1 and respondent

No.3/Insurance company examined its Legal Officer as

RW.2 and got marked the documents as Exs.R1 and R2.

8. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.1,79,455/- and held that the accident occurred on

account of contributory negligence of the driver of the

KSRTC bus and driver of lorry and apportioned

negligence equally to an extent of 50% and dismissed

the claim petition as against respondent No.3.

9. The petitioner has filed this appeal

challenging the judgment and award passed by the

Tribunal on the ground of liability and quantum.

10. Heard the learned counsel for the

petitioner/appellant and the learned counsel for

respondent No.3/Insurance company. There is no

representation on behalf of respondent No.1. Hence,

argument on behalf of respondent No.1 is taken as Nil.

11. The learned counsel for the petitioner

submits that the compensation awarded by the Tribunal

is on the lower side. He submits that in 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. On these grounds, he prays to

allow the appeal.

12. Per contra, the learned counsel for

respondent No.3/Insurance company submits that there

was composite negligence on the part of the driver of

both vehicles and the charge sheet is filed against the

driver of the both vehicles. She further submits that the

Tribunal was justified in fastening the liability and

apportioning liability equally to an extent of 50% on

respondent Nos.1 and 2. She further submits that the

petitioner was traveling as unauthorized passenger in

the lorry. Hence, there is violation of policy condition.

In view of the same, she submits that the Tribunal was

justified in dismissing the claim petition against

respondent No.3. On these grounds, she prays to

dismiss the appeal.

13. I have perused the records and considered

the submissions made by the learned counsel for the

petitioner and learned counsel for respondent No.3. The

point that arises for consideration is with regard to

quantum of compensation and liability.

14. It is not in dispute that the petitioner was

traveling in the lorry bearing No.KA.29/9183 as an

unauthorized passenger. Further, there is no dispute

with regard to the accident occurred on 07.02.2010 and

involvement of two vehicles in the accident.

Accordingly, charge sheet was filed against the driver of

both the vehicles. In order to prove the negligence on

the part of drivers of both the vehicles, the petitioner

has produced copy of charge sheet marked as Ex.P6.

Ex.P6 discloses that the accident occurred due to

contributory negligence on the part of driver of both

vehicles.

15. Insofar as liability is concerned, petitioner

who is examined as P.W.1 has deposed that the accident

occurred due to rash and negligent driving of the driver

of the bus. RW.1 who is the driver of the bus has

deposed that the accident occurred due to rash and

negligent driving of the driver of the lorry. On perusal

of the oral evidence of P.W.1, RW.1 and charge sheet,

the Tribunal has recorded finding that the driver of the

bus and driver of lorry equally contributed for the cause

of the accident and apportioned negligence equally at

50:50. Though the petitioner has made respondent

No.2/owner of the lorry and respondent No.3/insurer of

the lorry as party to the claim petition, however, while

passing the judgment directed respondent No.2 to pay

compensation to the extent of 50% and directed

respondent No.1 to pay compensation to the extent of

50%. The Hon'ble Apex Court in Khenyei vs. New

India Assurance Co., Ltd., and others reported in

(2015)9 SCC 273 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."

16. The Hon'ble Apex Court in the aforesaid case

held that in case of 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. In the present case,

petitioner can recover the compensation amount either

from respondent No.1 or from respondent No.2 jointly

and severally.

17. Perusal of the impugned judgment would

indicate that the petitioner/appellant was doing Tea

vending business in pulling cart and was earning a sum

of Rs.10,000/- per month. In support of his contention,

the petitioner did not produce any evidence before the

Tribunal. Therefore, as per the chart provided by the

Karnataka State Legal Services Authority, the notional

income will have to be taken into consideration. In

terms of the chart, for the accident of the year 2010, the

notional income of the petitioner will have to be taken at

Rs.5,500/- as against Rs.4,000/- per month taken by

the Tribunal. Though the petitioner has not led any

evidence with regard to permanent disability, the

Tribunal considering the nature of injuries awarded

compensation of Rs.1,79,455/-. The petitioner has

produced copy of wound certificate marked as Exs.P4

and P5. From perusal of Exs.P4 and P5, it would

disclose that the petitioner has sustained crush injury in

the upper left forearm, cut lacerated wound on anterial

lateral aspect exposing muscles, cut lacerated wound on

anterior aspect and middle of left area and cut lacerated

wound horizontally placed just behind frontal hair lieu in

frontal area and comminuted displaced fracture of mid

1/3rd shaft of both bones of left arum. In order to prove

the disability, the petitioner has not examined the

doctor. However, considering the nature of the injuries

sustained by the petitioner and Exs.P4 and P5, the

compensation awarded by the Tribunal is on the lower

side and the same is re-assessed in the following

manner:

Compensation awarded in Rs.

        Particulars
                                By the      By this
                               Tribunal      Court
Loss of amenities in life,       20,000/-    30,000/-
happiness and frustration
Conveyance      attendants
charges      food     and          10,000/-       20,000/-
nourishment
Pain and suffering                 30,000/-       40,000/-
Loss of income during the
                                     4,000/-      16,500/-
treatment (5,500 x 3)
Medical expenses                1,15,455/-      1,15,455/-
Total                          1,79,455/-       2,21,955/
Enhanced by this Court                           42,500/-

18. It is the case of respondent No.3 that the

petitioner was traveling as unauthorized passenger in

the lorry. There is violation of the policy. The said fact

has not been disputed by respondent No.2 and further

the petitioner himself has admitted in the claim petition

that he was traveling in a lorry. Thus, there is violation

of condition. Admittedly lorry was insured with

respondent No.3. If there is violation of policy condition,

respondent No.3 is liable to indemnify respondent No.2

and recover from respondent No.2.

19. In view of the above discussion, I proceed to

pass the following:

ORDER

i. The appeal is allowed in part.

   ii.          The impugned judgment and award
                passed by the Tribunal is modified.


   iii.         The   petitioner        is   entitled   to   an

enhanced compensation of Rs.42,500/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

iv. Respondent No.1/Corporation is directed to deposit the 50% of the compensation amount and respondent No.3/insurer is directed to deposit 50% of the compensation amount and recover the same from respondent No.2/owner in accordance with law.

v. Respondent Nos.1 and 3 are directed to deposit the compensation amount

before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.

vi. The Tribunal is directed to release the enhanced compensation amount with interest in favour of the petitioner.

Sd/-

JUDGE NB*