Karnataka High Court
Smt. Lakkavva W/O Muttappa Dhadake vs Shri. Navashadahmed S/O Lmehaboobsab ... on 22 February, 2024
Author: S G Pandit
Bench: S G Pandit
-1- MFA NO.101044/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.101044 OF 2022 (MV-D)
BETWEEN
1. SMT. LAKKAVVA,
W/O. MUTTAPPA DHADAKE,
AGE: 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KULALI,
TQ: MUDHOL,
DISTRICT: BAGALKOT,
NOW RESIDING AT SATTI,
TAL: ATHANI,
DIST: BELAGAVI.
PIN CODE: 591240.
2. SHRI. JATTING,
S/O. NANASAB DHADAKE,
AGE: 70 YEARS, OCC: NIL,
R/O. KULALI,
TQ: MUDHOL,
DISTRICT: BAGALKOT,
Digitally signed by
CHANDRASHEKAR NOW RESIDING AT SATTI,
LAXMAN
KATTIMANI
TAL: ATHANI,
Date: 2024.02.22 DIST: BELAGAVI.
18:05:00 +0530
PIN CODE: 591240.
3. SMT. KASAVVA,
W/O. JATTING DHADAKE,
AGE: 66 YEARS, OCC: NIL,
R/O. KULALI, TQ: MUDHOL,
DISTRICT: BAGALKOT,
NOW RESIDING AT SATTI,
TAL: ATHANI, DIST: BELAGAVI.
PIN CODE: 591240.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
-2- MFA NO.101044/2022
AND
1. SHRI. NAVASHADAHMED,
S/O. MEHABOOBSAB SHIRUR,
AGE: MAJOR,
OCC: BUSINESS,
R/O. 29, DANDIN ONI,
NEAR MOSQUE, SAIDAPUR,
K. C. PARK, DHARWAD,
PIN CODE: 580008.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE
COMPANY LTD.,
S-5, 2ND FLOOR,
MONARCH CHAMBERS,
INFANTRY ROAD,
BENGALURU-01.
...RESPONDENTS
(BY SRI. SURESH S. GUNDI, ADV. FOR RESPONDENT NO.2;
NOTICE TO RESPONDENT NO.1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, 1988, AMENDED ACT, 2018, AGAINST THE
JUDGMENT AND AWARD DATED 18.09.2019 PASSED IN MVC
NO.363/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI,
DISMISSING THE PETITION FILED UNDER SECTION 166 OF MOTOR
VEHICLE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.02.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, K V ARAVIND, J., DELIVERED THE FOLLOWING:
-3- MFA NO.101044/2022
JUDGMENT
This appeal by the claimants aggrieved against the
rejection of the claim petition in MVC No.363/2015 dated
18.09.2019 on the file of learned Principal Senior Civil Judge
and Addl.MACT, Athani (for short, 'Tribunal').
2. The wife and parents of deceased Muttappa
Dhadake filed a claim petition u/sec.166 of the Motor Vehicles
Act seeking compensation for the accidental death of
Muttappa Dhadake that has taken place on 19.10.2014
involving motorcycle bearing No.KA-48/R-0191 and mini lorry
bearing No.KA-25/ C-7313. It is stated that the deceased was
aged 30 years and earning a sum of Rs.9,000/- per month.
3. On service of notice, respondent No.1 remained
absent. Respondent No.2 appeared through its counsel and
filed objection denying the petition averments, place, date and
manner of accident. Admitting policy to mini lorry, however
denied the age, occupation and income of the deceased.
Further contended that the accident occurred due to rash and
negligent riding of the motorcycle by Paigambar. Owner and
insurer of the motorcycle are not parties in the petition, hence
the petition is bad for non-joinder of necessary parties. Thus,
prayed to dismiss the petition.
4. Petitioner No.1 examined herself as PW1 and
Sadashiv Maruti Pol as PW2 who was pillion rider and marked
Exs.P1 to P13. Respondent No.2 examined its officer as RW1
and got marked Exs.R1 and R2.
5. The Tribunal on appreciation of the oral and
documentary evidence concluded that the accident was due to
negligence of the rider of the motorcycle under the influence
of alcohol. Further held that as there was no negligence on the
part of the driver of the mini lorry contributing to the accident,
the composite negligence is not proved. On the above
reasons, the Tribunal dismissed the claim petition.
6. Heard learned counsel Sri Sanjay S.Katageri for
claimants-appellants and learned counsel Sri Suresh S.Gundi
for respondent No.2-Insurance Company.
7. Learned counsel for the claimants-appellants
submits that the deceased was pillion rider of motorcycle
bearing No.KA-48/R-0191. The accident occurred due to
negligence on the part of the rider of the motorcycle as well as
driver of the mini lorry. Merely because there is no charge
sheet against the driver of the mini lorry, the Tribunal
committed an error in concluding that there was no negligence
by the driver of the lorry. It is further contended that merely
because three members are traveling on a motorcycle and the
same is in violation of the Motor Vehicles Act, that would not
disentitle the claimants seeking compensation for accidental
death of deceased. It is further submitted that if the accident
has caused due to the negligence on the part of the rider of
the motorcycle involving mini lorry, the deceased being pillion
rider has not contributed any negligence to the accident. As
both rider of the motorcycle and driver of the mini lorry
contributed negligence to the accident, the accident is to be
considered due to composite negligence. Thus, prays to allow
the appeal and award compensation.
8. Per contra, learned counsel appearing for the
insurer submits that as per the evidence, the entire
negligence is on the rider of the two wheeler. No negligence
on the part of the driver of the lorry is proved. Hence, in the
absence of negligence on rider/driver of both the vehicles, the
accident cannot be held due to composite negligence. It is
further submitted that PW2-witness of the claimants has
stated that accident was due to rash and negligent riding of
motorcycle by Paigambar. Thus, it is proved that accident is
due to the negligence of the rider of the motorcycle, thus
composite negligence cannot be held. It is further submitted
that no charge sheet has been filed against the driver of the
mini lorry, however charge sheet is filed against the rider of
the motorcycle. The Tribunal justified in arriving at a
conclusion that the accident occurred due to negligence of the
rider of the motorcycle alone. Thus, prays to dismiss the claim
petition.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers and the record, the point
that arises for consideration is as under:
"Whether the Tribunal in the facts and
circumstances of the case justified in holding
that the accident in question was not due to
composite negligence?"
10. Our answer to the above point is 'in the negative'
for the following reasons.
11. The death of Muttappa due to accident on
19.10.2014 involving motorcycle bearing No.KA-48/R-0191
and mini lorry bearing No.KA-25/C-7313 is not in dispute in
this appeal. The only issue to be considered is regarding the
composite negligence.
12. It is not in dispute that the deceased was pillion
rider in the motorcycle. Even if the accident occurred due to
negligence of the rider of the motorcycle and also due to
consumption of alcohol, the deceased being a pillion rider has
not contributed any negligence to the accident. In the absence
of any negligence being contributed by the deceased, no
negligence can be attributed to the deceased. The Tribunal
committed an error in rejecting the claim petition merely on
the ground that the accident occurred due to negligence on
the part of the rider of the motorcycle. PW2, another pillion
rider though deposed that accident occurred due to rash and
negligent riding of motorcycle by Paigambar, the said
statement would not indicate/prove any negligence being
contributed by the deceased Muttappa. Hence, the Tribunal
committed an error in rejecting the claim petition on
conclusion that the accident occurred due to negligence on the
rider of the motorcycle Paigambar, without recording or any
evidence to prove that the deceased contributed any
negligence towards the accident.
13. The another issue requires to be considered by us
is whether the driver of the mini lorry contributed any
negligence to the accident. The Tribunal merely on the
statement of PW2-pillion rider and charge sheet being filed
against the rider of the motorcycle and also considering that
no charge sheet has been filed against the driver of the lorry
has arrived at a conclusion that there is no composite
negligence. The evidence of PW2 would state that the rider of
the motorcycle Paigambar was riding the bike in a high speed
and he was told by PW2 and the deceased to drive slowly. It is
further stated that they were three on the motorcycle at the
time of accident. This statement of PW2 in no way indicate or
state that the driver of the mini lorry has not contributed any
negligence in the accident. Merely because PW2 has stated
that rider of motorcycle was riding in a high speed, the
Tribunal without any basis has arrived at a conclusion that
high speed of motorcycle has resulted in accident and the
accident was solely due to the negligence on the part of the
rider of the motorcycle.
14. The Tribunal has further relied on Ex.P5/sketch to
hold that the accident was due to sole negligence of the rider
of the motorcycle. The Tribunal further referring to Motor
Vehicles Report considering the damage to the right side of
the mini lorry and front portion of the two wheeler, there were
no damages to the mini lorry on its front side, concluded that
the lorry did not hit the motorcycle and it was the motorcycle
dashed the lorry. Thus, concluded that the accident was due
to negligence of the rider of motorcycle. On examination of
Ex.P5/spot sketch, it can be seen that the width of the road is
18 feet, the accident occurred at middle of the road, on the
accident point the road is curve. The curve is towards right of
the four wheeler i.e. mini lorry and towards left side of the
motorcycle. By considering the point of accident and width of
the road, it is difficult to accept that accident occurred only
due to the negligence of rider of motorcycle. By considering
the nature of the road and the width, the accident has not
occurred without there being any negligence on the part of the
driver of the mini lorry. If the driver of the mini lorry has
taken precautions in the curve, the possibility of occurrence of
the accident or impact due to the accident would have been
avoided. Ex.P6 are the photographs of the accident place
where the dead body of the deceased and mini lorry position
can be seen. From Ex.P6/photographs, which corroborates
with Ex.P5/sketch that the mini lorry was passing the curve
towards its right indicating that the driver of the lorry ought to
have exercised caution while crossing the curve road. In the
circumstances, we are convinced that Exs.P5 and P6 would
clearly establish that the driver of the mini lorry also
contributed negligence towards the accident. The Tribunal
without considering the above aspects merely on the basis of
Motor Vehicles Report and on the basis of the damage to the
lorry and two wheeler has arrived at a conclusion that the
accident was due to negligence of the two wheeler, which
finding is erroneous. The evidence before the Tribunal
indicates the contribution of negligence by the rider of the
motorcycle and the driver of mini lorry. The charge sheet
against the rider of motorcycle cannot be considered as
conclusive proof. No evidence is placed or proved to
demonstrate that there was no negligence on the part of the
driver of the mini lorry. The Tribunal committed an error in
not examining the evidence to find out the negligence of the
driver of mini lorry involved in the accident. We hold that the
driver of the mini lorry also contributed negligence to the
accident and the same constitutes composite negligence by
the rider of the motorcycle and driver of the mini lorry.
15. Learned counsel for the insurer has contended that
the claim petition was not maintainable for not joining the
owner and insurer of the two wheeler. Learned counsel for the
claimants submits that in the case of composite negligence,
claim is maintainable on anyone of the Joint Tort-feasors.
Learned counsel for the claimants relied on the judgment of
the Hon'ble Supreme Court in 2014 ACJ 704 in the case of
Pawan Kumar and another V/s Harkishan Dass Mohan
Lal and others, decision of full bench of this Court in ILR
2004 KAR 26 in the case of Karnataka State Road
Transport Corporation V/s Arun @ Aravind and others
and 2015 ACJ 1441 in the case of Khenei V/s New India
Assurance Co.Ltd. and others, to support their contentions.
16. In the above judgment, it is held that in the case
of composite negligence i.e. when the accident occurs due to
negligence of the driver of two vehicles, their liability would be
joint and several and the claimant can proceed against both or
anyone of the joint tort-feasors and recover full compensation
to which he is entitled. Apportionment of negligence between
joint tort-feasors is for the benefit of the respondents to claim
contribution from the other tort-feasor if he satisfies the
award against the claimant. It is open to the tort-feasor, who
satisfies the award to proceed against the other tort-feasor for
contribution.
17. On applying the principle of law stated in the above
decisions, we are of the view that in case accident is due to
composite negligence, the claim petition against anyone of the
tort-feasors is maintainable. The claim petition without joining
owner and insurer of two wheeler is maintainable. Thus, the
contention of the insurer on the maintainability of a claim
petition is rejected.
18. In view of the aforesaid reasons, we are of the
view that the accident occurred due to negligence on the part
of the rider of the motorcycle and driver of the mini lorry. The
matter requires to be reconsidered to quantity the
compensation by the Tribunal considering the accident was
due to composite negligence. Hence, the following:
ORDER
a) The appeal is allowed.
b) The judgment and award dated 18.09.2019
passed in MVC No.363/2015 by the Principal
Senior Civil Judge and Addl. MACT, Athani is
hereby set aside.
c) Matter is remitted to the Tribunal for fresh
consideration.
d) All the contentions are kept open except to
the issue regarding composite negligence.
e) Both the parties are at liberty to lead further
evidence, if required.
f) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
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