The Divisional Manager vs Santosh S/O Sabayya And Another
2023 Latest Caselaw 989 Kant

                          1           MFA No.200662/2015




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 17TH DAY OF JANUARY, 2023

                       BEFORE

         THE HON'BLE MS.JUSTICE J.M.KHAZI

              MFA No.200662/2015 (MV)

BETWEEN:

THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE
COMPANY LTD.,
JEWALI COMPLEX SUPER MARKET ROAD,
KALABURAGI
                                          ...APPELLANT
(BY SRI. SANJAY M. JOSHI, ADVOCATE)

AND:

1.     SANTOSH S/O SABAYYA
       AGE: 24 YEARS
       OCC: MECHANIC
       R/O ASHOK NAGAR, BENNUR 'K' VILLAGE
       TQ. CHITTAPUR, NOW
       RESIDING AT MSK MILLS AREA
       JEELANABAD, GULBARGA

2.     SHIVASHARANAPPA
       S/O SHANKARRAO TENGLI
       AGE: MAJOR
       OCC: OWNER CUM DRIVER
       OF THE HERO HONDA BEARING
       REGISTRATION NO.KA-32/S-0835
       R/O HEBBAL VILLAGE
                              2           MFA No.200662/2015




      TQ. CHITTAPUR
      DIST. GULBARGA
                                         ... RESPONDENTS

(R-1 AND R-2 SERVED-UNREPRESENTED)

      THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL
AND SET ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 16.12.2014 IN MVC NO.72/2012 PASSED BY THE
III ADDL. SENIOR CIVIL JUDGE & MACT, KALABURAGI,
AWARDING COMPENSATION OF RS.4,13,458/-.


      THIS MFA HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT     ON    09.01.2023,   COMING     ON   FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-


                        JUDGMENT

Being aggrieved by the fact that despite coming to

the conclusion that there was contributory negligence by

the petitioner in causing the accident, the Tribunal has

fixed the entire liability of paying the compensation on the

respondent No.2 - Insurance company, it has come up

with the appeal under Section 173(1) of the M.V Act.

2. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

3. FACTS: The petitioner filed claim petition under

Section 166 of M.V. Act seeking compensation in a sum of

Rs.9,50,000/- for the injury sustained in a motor vehicle

accident dated 10.06.2010. It is the case of the petitioner

that on that day at 8.30 p.m. he was proceeding on Hero

Honda motor cycle bearing registration No.KA-51/Q-9647

from Ashok Nagara to Kalgi very slowly and cautiously on

the extreme left side of the road. However, respondent

No.1 rider of Hero Honda motorcycle bearing registration

No.KA-32/S-0835 (hereinafter referred to as offending

vehicle) came from the opposite side in a rash or negligent

manner and dashed against the motor cycle of the

petitioner. In the said accident, petitioner sustained

grievous injuries. In this regard, a criminal case was

registered against the rider of the offending vehicle.

Despite prolonged treatment, petitioner is not completely

cured. He has suffered permanent partial disability. As a

mechanic he was earning Rs.6,000/-p.m. After the

accident, he is unable to work as he used to.

4. Though respondent No.1 who is the owner as

well as rider of the offending vehicle appeared through

counsel, he failed to file written statement.

5. Respondent No.2 - Insurer of the offending

vehicle has filed written statement denying the age,

occupation, income of the petitioner that he has suffered

permanent partial disability and that accident occurred due

to the rash or negligent driving by the respondent No.1. At

the time of accident, respondent No.1 was not holding a

valid driving license. It has also denied the issue of policy.

Respondent No.2 has specifically pleaded that petitioner

was equally responsible for causing the accident and has

sought for dismissal of the petition.

6. Based on the pleadings, Tribunal has framed

necessary issues.

7. In support of his case, petitioner has examined

himself as PW-1 and one witness as PW-2. He has relied

upon Ex-P1 to 16.

8. On the other hand, on behalf of respondent

No.2, one witness is examined as RW-1 and Ex-D1 is

marked.

9. Vide the impugned judgment and award the

Tribunal has granted compensation in a sum of

Rs.4,13,458/- and directed respondent No.2 to pay the

same with interest @6% p.a. The details of compensation

granted are as under:

                    Heads                      Amount
                                                In Rs.
     Towards pain and suffering                    30,000/-
     Towards loss of amenities and                   10,000/-
     enjoyment in life
     Towards loss of future income                  1,55,520/-
     Towards Medical expenses and                   1,50,938/-
     incidental charges
     Towards attendant's charges, food,              34,000/-
     nourishment and conveyance
     expenses
     Towards loss of income during period            18,000/-
     of treatment
     Towards future medical expenses                 15,000/-
                                      TOTAL     4,13,458/-





         10.    The    petitioner       has   not    challenged      the

impugned judgment and award.

11. Respondent No.2 has come up with this appeal

contending that though having come to the conclusion that

petitioner was equally responsible for causing the accident,

it has failed to hold that he was a joint tort-feasor and not

a third party and it ought to have saddled 50% of liability

on the petitioner and directed respondent No.2 to pay only

50%. It has totally misunderstood the decision in

Karnataka State Road Transport Corporation, by

its Managing Director Vs. Arun @ Aravind and

Others1 (KSRTC case) which deals with third party

claims and the said decision is not applicable to the

present case and prays to reduce its liability to 50% and

fixing the remaining 50% liability on the petitioner himself.

12. Despite due service of notice, petitioner and

respondent No.1 has remained absent.

ILR 2004 KAR 26

13. Heard arguments of learned counsel

representing respondent No.2/Insurance Company and

perused the record.

14. Since appellant/respondent No.2 -Insurance

Company has not challenged the quantum, the same need

not be gone into.

15. Now coming to the quantum of contributory

negligence: In respect of the accident, a complaint came

to be lodged by one Suresh S/o Bheerayya. From the

complaint averments it is evident that at the time of

accident, he was proceeding on a motor cycle from Goturu

towards Kalagi. He has specifically stated in the complaint

that at the time of accident petitioner was coming on his

motorcycle. Similarly respondent No.1 was riding the

offending vehicle. Both of them were driving the respective

vehicles in a rash or negligent manner and dashed against

each other. In the said accident, they suffered grievous

injuries and with the help of a Jeep driver who was going

toward Kalagi side, he shifted all the injured to the

hospital. The complaint is marked as Ex.P2. After

completing the investigation, the concerned Police have

filed charge sheet against both petitioner as well as

respondent No.1 as equally responsible for causing the

accident. It has arraigned petitioner as accused No.1 and

respondent No.1 as accused No.2.

16. During his cross-examination petitioner has

admitted that in the complaint it was alleged that he was

also negligent in causing the accident. Admittedly, the

petitioner has not challenged the charge sheet which

alleges that he was also equally responsible for causing the

accident.

17. In fact during the course of the judgment, the

Tribunal has clearly given a finding that petitioner was also

responsible for causing the accident. However, relying

upon the decision in KSRTC case referred to supra, the

Tribunal has held that it is a case of composite negligence

and therefore respondent No.2 - Insurance Company be

directed to pay the entire compensation and recover the

proportionate compensation from the insurer of the

motorcycle ridden by the petitioner. KSRTC case referred

to supra deals with injury sustained by a third party

involving two vehicles. In the said judgment it was held

that where two or more vehicles are involved and there is

composite negligence, the claimants/third party can

recover the compensation from any of the joint tort-

feasors and compensation awarded cannot be reduced for

non-impleading of the other joint tort-feasors.

18. As rightly contended by respondent No.2,

petitioner himself is a joint tort-feasor. He is not a third

party to the accident. Such being the case having

contributed equally to the accident, petitioner is not

entitled for 50% of the compensation. The Tribunal

wrongly applying the decision in KSRTC case referred to

supra and directed respondent No.2 to pay the entire

compensation. It is not a case of composite negligence.

Therefore, KSRTC case referred to supra is not application.

As a joint tort-feasor having contributed 50% to the

accident, petitioner is not entitled to claim 50% of the

compensation. RespondentNo.2 is liable to pay the

remaining 50% of the compensation.

19. Thus, from the above discussion, I hold that

the appeal deserves to be allowed in part and the

impugned judgment and award is required to be modified

so far as fixing the liability to pay entire compensation on

respondent No.2 is concerned. Having regard to the fact

that petitioner has contributed 50% to the accident, he is

entitled to recover only 50% of the compensation from

respondent No.2 and accordingly, I proceed to pass the

following:

ORDER

(a) Appeal is hereby allowed.

(b) The impugned judgment and award directing respondent No.2 to pay entire compensation is modified.

(c) Respondent No.2 is directed to pay 50% of the compensation with interest at 6% p.a. Having

contributed equally for the accident, petitioner is not entitled to recover the remaining 50% of the compensation.

(d) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.

Sd/-

JUDGE

RR