Karnataka High Court

Kashamma And Ors vs Siddalingappa And Ors on 3 September, 2024

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

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                                                    MFA No. 200482 of 2021
                                                C/W MFA No. 200434 of 2022



                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                         DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                          PRESENT

                        THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                            AND
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

                        MISCL. FIRST APPEAL NO.200482 OF 2021 (MV-D)
                                            C/W
                        MISCL. FIRST APPEAL NO.200434 OF 2022 (MV-D)


                   IN M.F.A NO.200482/2021:

                   BETWEEN:

                   THE BRANCH MANAGER
                   RELIANCE GENERAL INSURANCE
                   COMPANY LIMITED,
                   3RD FLOOR, ASIAN PLAZA,
                   TIMMAPUR CIRCLE,
Digitally signed
                   MAIN ROAD,
by SHILPA R        KALABURAGI.
TENIHALLI
                   (NOW REPRESENTED BY
Location: HIGH
COURT OF           AUTHORIZED SIGNATORY, HUBLI).
KARNATAKA                                                      ...APPELLANT

                   (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

                   AND:


                   1.   KASHAMMA
                        W/O LATE HANAMANTHA,
                        AGE: 36 YEARS,
                        OCC. HOUSEHOLD AND COOLIE.
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                                    MFA No. 200482 of 2021
                                C/W MFA No. 200434 of 2022



2.   RENUKAMMA
     D/O LATE HANAMANTHA,
     AGE: 20 YEARS, OCC: COOLIE.

3.   PARASHURAM
     S/O LATE HANAMANTHA,
     AGE: 16 YEARS, OCC: COOLIE.

4.   NINGAMMA
     D/O LATE HANAMANTHA,
     AGE: 15 YEARS, OCC: COOLIE.

5.   SHRIDEVI
     D/O LATE HANAMANTHA,
     AGE: 13 YEARS, OCC. COOLIE.

6.   SHRISHAIL
     S/O LATE HANAMANTHA,
     AGE: 12 YEARS, OCC: COOLIE.

7.   BASAPPA
     S/O LATE HANAMANTHA,
     AGE: 9 YEARS, OCC: COOLIE.

8.   PARAMAWWA
     W/O LATE BASAPPA,
     AGE: 72 YEARS, OCC: NIL,

     R3 TO 7 ARE MINORS,
     REPRESENTED BY THEIR MOTHER R1,
     ALL ARE R/O. KATAMANALLI VILLAGE,
     SHAHAPUR TALUK,
     YADGIR- 585 201.

9.   SIDDALINGAPPA
     S/O HANAMANTHA,
     AGE: 35 YEARS,
     OCC: DRIVER OF TUM-TUM AUTORICKSHAW,
     R/O. KATAMANALLI VILLAGE,
     SHAHAPUR TALUK,
     DISTRICT: YADGIR- 585 201.
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                                 MFA No. 200482 of 2021
                             C/W MFA No. 200434 of 2022



10. MALLAPPA
    S/O DEVAPPA,
    AGE: 30 YEARS,
    OCC. OWNER OF AUTORICKSHAW
    BEARING NO. KA-33/5381,
    R/O. KOLLUR VILLAGE,
    TQ. SHAHAPUR,
    DISTRICT: YADGIR- 585 201.

11. BAGANNA
    S/O BHIMANNA SHIRAWAL,
    AGE: 25 YEARS,
    OCC. J.C.B. DRIVER,
    R/O. TADIBIDI VILLAGE,
    TQ. SHAHAPUR,
    DISTRICT: YADGIR- 585 201.

12. BHIMANNA
    S/O BAGANNA NALWADAGI,
    AGE: 45 YEARS,
    OCC: TEACHER, OWNER OF JCB,
    REGN. KA-33/A-0706,
    R/O. TADIBIDI VILLAGE,
    TQ. SHAHAPUR,
    DISTRICT: YADGIR- 585 201.
                                         ...RESPONDENTS
(BY SRI RAJESH G. DODDAMANI, ADV., FOR R1, R2 & R8;
SRI SHRAVANKUMAR MATH, ADVOCATE, FOR R10;
SRI S.M. KANDKUR FOR R12;
R9 & R11 - NOTICE DISPENSED WITH;
R3 TO R7 ARE MINORS REPRESENTED BY R1)

     THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 11.08.2020 IN MVC
NO.239/2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
AND ADDL. MACT-4, SHAHAPUR, IN THE INTEREST OF JUSTICE
AND EQUITY.
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                                    MFA No. 200482 of 2021
                                C/W MFA No. 200434 of 2022



IN M.F.A NO.200434/2022:

BETWEEN:


1.   KASHAMMA
     W/O LATE HANAMANTHA,
     AGE: 37 YEARS,
     OCC. HOUSEHOLD AND COOLIE.

2.   RENUKAMMA
     D/O LATE HANAMANTHA,
     AGE: 21 YEARS, OCC: COOLIE.

3.   PARASHURAM
     S/O LATE HANAMANTHA,
     AGE: 17 YEARS, OCC: COOLIE.

4.   NINGAMMA
     D/O LATE HANAMANTHA,
     AGE: 16 YEARS, OCC: COOLIE.

5.   SHRIDEVI
     D/O LATE HANAMANTHA,
     AGE: 14 YEARS, OCC: COOLIE.

6.   SHRISHAIL
     S/O LATE HANAMANTHA,
     AGE: 13 YEARS, OCC: COOLIE.

7.   BASAPPA
     S/O LATE HANAMANTHA,
     AGE: 10 YEARS, OCC: COOLIE.

8.   PARAMAWWA
     W/O LATE BASAPPA,
     AGE: 73 YEARS, OCC: NIL,

     APPELLANT NOS.3 TO 7 ARE MINORS
     REPRESENTED BY APPELLANT NO.1
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                                 MFA No. 200482 of 2021
                             C/W MFA No. 200434 of 2022



     ALL ARE R/O. KATAMANALLI VILLAGE,
     TALUK: SHAHAPUR,
     DISTRICT: YADGIRI- 585 223.
                                            ...APPELLANTS
(BY SRI RAJESH G. DODDAMANI, ADVOCATE)

AND:

1.   SIDDALINGAPPA S/O HANAMANTHA,
     AGE: 36 YEARS,
     OCC: DRIVER OF TUM-TUM AUTORICKSHAW,
     R/O. KATAMANALLI,
     TALUK: SHAHAPUR,
     DISTRICT: YADGIR- 585 233.

2.   MALLAPPA S/O DEVAPPA,
     AGE: 31 YEARS,
     OCC. OWNER OF AUTORICKSHAW
     BEARING NO.KA-33/5381,
     R/O. KOLLUR VILLAGE,
     TQ. SHAHAPUR,
     DISTRICT: YADGIR- 585 223.

3.   BAGANNA S/O BHIMANNA SHIRAWAL,
     AGE: 27 YEARS,
     OCC. J.C.B. DRIVER,
     R/O. TADIBIDI VILLAGE,
     TQ. SHAHAPUR,
     DISTRICT: YADGIR- 585 223.

4.   BHIMANNA
     S/O BAGANNA NALWADAGI,
     AGE: 46 YEARS,
     OCC: TEACHER, OWNER OF JCB
     REGN. KA-33/A-0706,
     R/O. TADIBIDI ,
     TQ. SHAHAPUR,
     DISTRICT: YADGIR- 585 223.
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                                    MFA No. 200482 of 2021
                                C/W MFA No. 200434 of 2022



5.    THE BRANCH MANAGER
      RELIANCE GENERAL INSURANCE
      COMPANY LIMITED,
      3RD FLOOR, ASIAN PLAZA,
      TIMMAPUR CIRCLE, MAIN ROAD,
      KALABURAGI- 585 101.
                                            ...RESPONDENTS
                                                              [[[[




(BY SRI SHIVASHARANA REDDY, ADVOCATE, FOR R4;
SMT. PREETI PATIL, ADVOCATE, FOR R5;
R3 - NOTICE DISPENSED WITH;
R1 & R2 - SERVED)
     THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND AWARD COMPENSATION OF
RS.17,63,000/- (EXCLUDING THE AMOUNT AWARDED BY THE
TRIBUNAL) ALONG WITH INTEREST @ 12% P.A., AND
CONSEQUENTLY SET ASIDE THE ORDER OF FASTENING
LIABILITY TO AN EXTENT OF 50% ON THE OWNER OF AUTO
RICKSHAW     BEARING    NO.KA-33/5381    BY    MODIFYING
JUDGMENT AND AWARD OF THE SENIOR CIVIL JUDGE AND
JMFC AND ADDL. MACT-4 AT SHAHAPUR DATED 11.08.2020 IN
MVC NO.239/2018.

    THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
           AND
           HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR


                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

These two appeals arise out of common judgment

and award dated the 11.08.2020 passed in MVC

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No.239/2018 by the Senior Civil Judge and JMFC and

Additional MACT-4, Shahapur (for short 'Tribunal').

2. MFA No.200434/2022 is filed by the appellants/

claimants seeking enhancement of the compensation,

whereas, MFA No.200482/2021 is filed by the appellant/

Reliance General Insurance Company, represented by its

Branch Manager, questioning the negligence as well as

quantum of compensation.

3. The parties to these appeals are referred to

with reference to their rank before the Tribunal.

4. The facts in brief as set out in the claim petition

filed by the claimants are as under:

That the claimants filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988, seeking total

completion of Rs.35,00,000/- on account of the death of

one Hanamantha Doddamani, who is the husband of

claimant No.1, father of claimant Nos.2 to 7 and son of

claimant No.8 in a motor vehicle accident that occurred on

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27.07.2017 at 11:30 a.m. on Khanapur to Hattigudur

Road of Tadibidi Village, Shahapur Taluka. It is stated by

the claimants that, the deceased Hanamantha was

traveling in an autorickshaw bearing registration No.KA-

33/5381 on 27.07.2017 at about 11.30 a.m. On that day,

when the said autorickshaw was moving on Khanapur -

Hattigudur Road, the driver of the said autorickshaw, who

is respondent No.1, drove the same in a rash and

negligent manner and dashed to the JCB bearing

registration No.KA-33/A-0706 driven by respondent No.3.

Because of the said impact, the diseased fell down and

sustained grievous injuries on his person. He was shifted

to Government Hospital, Yadgir. Thereafter, he was

shifted to RIMS Hospital, Raichur, but, he died on the way

to the said hospital. It is further stated by the claimants

that, prior to the accident, the deceased was working as

agricultural coolie and was earning Rs.20,000/- p.m.

Because of untimely death of the deceased, the claimants

being the dependents on the income of the deceased are

mentally and financially suffering. It is alleged that, the

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said accident has taken place because of the negligence on

the part of both the vehicles i.e., autorickshaw as well as

JCB owned by respondent Nos.2 and 4 respectively.

Therefore, the claimants have filed a claim petition seeking

compensation.

5. Pursuant to the notice by the Tribunal,

respondent Nos.1, 2, 4 and 5 have appeared through their

counsel and respondent No.2 has filed written objections

and the same was adopted by respondent No.1.

Respondent No.4 and 5 filed their separate written

objections to the claim petition. Despite service of notice,

respondent No.3 did not appear before the Tribunal and

therefore, he was placed ex-parte.

6. Respondent Nos.1, 2, 4 and 5 in their written

objections denied the nature of accident, place of accident

and also negligence on the part of both the vehicles in

causing the sad accident. It is also denied that the

deceased was earning Rs.20,000/- per month. It is

contended that the claim of the claimants is exaggerating

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and highly excessive. Therefore, it is prayed by the

respondents stated above to dismiss the petition.

7. Based upon the rival pleadings of both the

parties the Tribunal framed the relevant issues.

8. Before the Tribunal, to substantiate their case

the 1st claimant entered the witness box as PW1 and got

marked the documents at Exs.P1 to P8. Respondent Nos.1

and 2 have not led any oral or documentary evidence. So

far as respondent Nos.4 is concerned, he himself entered

the witness box as RW1 and got marked two documents

as Exs.R1 and R2. The Manager of respondent No.5

entered the witness box as RW2 and got marked

documents as Exs.R4 and R5.

9. The Tribunal on hearing the arguments and on

evaluation of the evidence placed on record by both the

sides, held that the said accident has taken place because

of the negligence on the part of both the vehicles stated

supra to the extent of 50% each and awarded the

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compensation as stated above, fastening liability on

respondent No.2 - owner of offending auto rickshaw to pay

50% of the compensation amount with accrued interest

and remaining 50% fastened on respondent No.5 -

Insurance Company with liberty to recover the same from

respondent No.4. The Tribunal also ordered with regard to

apportionment, deposit and release of the compensation

amount.

10. Being aggrieved by the liability to pay 50% of

award amount with direction to recover the same from

respondent No.4, the Insurance Company - respondent

No.5 is before this Court. It is contended that the

compensation awarded by the Tribunal towards

conventional heads and other heads is required to be

modified.

11. The claimants would contend that, the

compensation awarded by the Tribunal is very meager and

also being aggrieved by the order of fastening 50%

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liability on the owner of the auto rickshaw they are before

this Court.

12. We have heard the arguments of both the

counsels and perused the records made available before

this Court.

13. It is submitted by the counsel for the claimants

that, the said accident has taken place because of rash

and negligent driving of JCB bearing Registration No.KA-

33/A-0706 by its driver. Hanamantha was the inmate of

the autorickshaw, as he was an inmate of the

autorickshaw, he is a third party. It is submitted by the

learned counsel for the claimants that because of untimely

death of the deceased, the claimants being the

dependents on the income the deceased, are suffering

both mentally and financially. He submits that the

deceased being an agriculturist as well as coolie was

earning Rs.20,000/- per month. Now the claimants are

deprived of the said income and it has become very

difficult for the claimants to maintain their family. He

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further submits that, since the accident is of the year

2017, as per the chart issued by the Karnataka State Legal

Services Authority, the Tribunal ought to have taken the

notional monthly income of the deceased at 10,250/-

instead of Rs.9000/- and awarded reasonably

compensation with 12% interest per annum instead of

6%. He further submits that as the accident has taken

place due to rash and negligent driving of JCB, the

Tribunal has erred in fixing 50% liability on the owner of

auto rickshaw.

14. As against this submission, learned counsel

Smt. Preeti Patil for Insurance Company submits that,

both the drivers were not holding the effective Driving

License at the time of accident. She submits that, though

the policy is in force with regard to JCB being insured with

the Insurance Company owned by respondent No.4, there

is violation of the policy conditions by the owner of the

JCB, hence, Insurance Company be absolved from the

liability. She further submits that, the liability must be

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fastened at 50% each on the owners of both the vehicles.

Further, she submits that, whatever compensation

awarded by the Tribunal appears to be excessive and such

a compensation cannot be awarded as there is no proof

with regard to the income of the deceased. She further

submits that, interest claimed in the appeal at 12% per

annum by the claimants is exorbitant. Hence, she submits

that the appeal filed by the claimants needs to be

dismissed and appeal filed by the Insurance Company is to

be allowed.

15. In view of the rival submissions of both the

sides, the only point that would arise for our consideration

is:

"Whether the Tribunal committed any illegality or infirmity in awarding the compensation and fastening 50% liability on the owner of auto rickshaw and 50% on the Insurance Company to pay the compensation with liberty the Insurance Company to recover the 50% from respondent No.4 by holding that there is

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equal negligence on the part of the drivers of both the vehicles?"

16. It is not in dispute that on 27.07.2017 at 11.30

a.m., deceased Hanmantha met with an accident when he

was traveling as inmate of an autorickshaw bearing

Registration No.KA-33/A-0706 on Khanapur to Hattigudur

Road of Tadibidi Village, Shahapur Taluk. It is also not in

dispute that the deceased is the husband of the claimant

No.1, father of claimant Nos.2 to 7 and son of claimant

No.8. It is the case of the claimants that, the accident

occurred due to rash and negligent driving of the JCB

bearing registration No.KA-33/A-0706 by its driver

respondent No.3. It is also alleged that even the driver of

auto rickshaw also drove the auto rickshaw in rash and

negligent manner and in that process said accident has

taken place.

17. To substantiate the assertions made in the

claim petition, the claimants have relied upon Ex.P1-First

Information Report, Ex.P2-First Information Statement,

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Ex.P3-Charge-Sheet, Ex.P4-Spot Mahazar, Ex.P5-Inquest

Mahazar, Ex.P6-Post Mortem Report and Exs.P7 and 8-

IMV Report.

18. It is submitted by the counsels for all the

parties that, charge-sheet has been filed by the Police

after due investigation of the accident against respondent

Nos.1 to 4. As per charge-sheet, respondent Nos.1 and 3

have committed the offences punishable under Sections

279, 337 and 304(A) of IPC and Section 181 of M.V. Act;

respondent Nos.2 has committed the offence punishable

under Sections 180 and 196 of M.V. Ac, and respondent

No.4 has committed the offence punishable under section

180 of the MV Act. Learned counsel for the claimants

made available the copy of the complaint. It is stated in

the complaint that when the JCB was moving towards

main road, at that time, it dashed against the

autorickshaw and because of that, the said accident has

taken place. Driver or riders of the motor vehicles are

expected to drive the vehicles slowly and cautiously when

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they are approaching the main road. It is the duty of the

drivers to watch on either side of the road and then move

on the main road. Here in this case, as per the contents

of the complaint, both the drivers i.e., respondent No.1

driver of auto rickshaw as well as respondent No.3 driver

of JCB appear to be rash and negligent in driving their

respective vehicles and without noticing the traffic and

movement of the vehicles on the road caused the

accident, because of that the deceased lost his life. The

contents of the complaint as well as the copy of charge-

sheet filed by the Police show that the crime was

registered against respondent Nos.1 to 4 and also held

that, the drivers of both the vehicles were driving their

respective vehicles without possessing effective driving

license. The charge-sheet is not denied either by the

drivers or owners or by the Insurance Company.

19. The Tribunal while answering issue No.1 has

come to a definite conclusion that, the said accident has

taken place because of the rash and negligent driving of

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rickshaw as well as JCB driven by respondent Nos.1 and 3,

respectively, and those vehicles are owned by respondent

Nos.2 and 4. While giving finding with regard to the

negligence on the part of the both the vehicles in parallel,

the Tribunal has held that the accident has taken place

because of the rash and negligent driving of both the

drivers, thus, Tribunal has assessed the negligence to the

extent of 50% each on respondent Nos.1 and 3. On

scrupulous reading of the contents of the documents made

available by the claimants as well as, on reading the entire

records, it shows that, Tribunal is right in assessing

negligence and fastening 50% negligence on each of the

drivers. We do not find any factual or legal error

committed by the Tribunal. Therefore, the Tribunal is right

in holding that, the drivers of both the vehicles are equally

negligent in causing the accident.

20. Insofar as the award of compensation is

concerned, the Tribunal as stated supra under all the

relevant conventional heads has awarded Rs.17,37,000/-

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together with 6% interest from the date of petition till its

realization. It has also held that respondent Nos.2 and 5

are liable to pay 50% each and that respondent No.5 -

Insurance Company is at liberty to recover 50% of the

compensation to be indemnified by it from respondent

No.4.

21. Before the Tribunal though the claimants

claimed that the deceased was an agriculturist as well as

coolie and earning Rs.20,000/- per month, but no

document is produced in support of it. In the absence of

proof of income, the Tribunal has taken the monthly

income of the deceased at Rs.9,000/-. Considering the

age, avocation and year of accident, the same is required

to be re-assessed as per the chart issued by the Karnataka

State Legal Services Authority. Accordingly we re-assess

the income at Rs.10,250/- per month in the place of

Rs.9,000/- assessed by the Tribunal.

22. As per post mortem report at the time of death

the deceased, he was aged about 40 years. Except

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postmortem report, no document is produced. In the

absence of any authenticated document produced by the

claimants, the Tribunal has rightly considered the age of

the deceased 40 years at the time of his death and also

rightly applied the multiplier '15' as per the Schedule.

23. As per the judgment in the case of National

Insurance Co. Ltd. Vs. Pranay Sethi reported in

(2017) 16 SCC 680, as the claimants in this appeal were

fully dependent on the income of the deceased, the future

prospects has to be added at 25% of his monthly income

which comes to Rs.2,563/-. Accordingly, the monthly

income comes to Rs.10,250/- + Rs.2,563/- = Rs.12,813/-.

As the there are 8 dependents 1/5th of his income i.e.,

Rs.2,563/- is to be deducted towards his personal

expenses as per the judgment in the case of Praney

Sethi (supra), accordingly it comes to Rs.10.250/-. Thus,

loss of dependency is calculated at Rs.10,250/- x 12 x 15

=Rs.18,45,000/-.

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24. As there are eight dependents, towards loss of

consortium Rs.40,000/- each is to be awarded which

comes to Rs.3,20,000/-/-. So far as loss of estate and

funeral expenses is concerned, as per the judgment in the

case of Pranay Sethi (supra), in all together if

Rs.30,000/- is awarded, it would meet the ends of justice

and accordingly, it is awarded.

25. Thus, the claimants are held entitled for

enhanced compensation under the following heads:

Sl.

                      Heads                              Amount
No.
1      Loss of dependency                              Rs.18,45,000/-

2      Loss of consortium                               Rs.3,20,000/-
       (Rs.40,000/- x 8)

3      Loss of estate                                        Rs.15,000/-

4      Towards funeral expenses                              Rs.15,000/-

                                         Total        Rs.21,95,000/-

26. There will be enhancement of (21,95,000/- less

17,37,000) = Rs.4,58,000/-.

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27. Insofar as liability is concerned, it is held while

answering with regard to the negligence that there was

negligence on the part of the drivers of both the vehicles

equally. Therefore, the Tribunal has assessed the

negligence of 50% on each vehicle. In view of the findings

and the observations made above, the Tribunal has not

committed any legal or factual error in arriving such

conclusion. The primary liability is on the owners of the

vehicles to pay the compensation. As the offending auto

rickshaw was not insured at the time of accident and

offending JCB though insured with respondent No.5 -

Insurance Company, its driver was not having valid and

effective driving license to operate the JCB at the time of

accident. Therefore, the Tribunal fastened 50% liability on

the owner of auto rickshaw and 50% on the owner of JCB

and directed respondent No.5 being the insurer of the JCB

to pay 50% of the compensation at the first instance on

behalf of respondent No.4 - owner of JCB. However,

respondent No.5 - Insurance Company is questioning the

pay and recovery policy in the present case. Learned

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counsel for the claimants during the course of his

argument, relied upon the judgment of Hon'ble Apex Court

in the case of KHENYEI Versus NEW INDIA

ASSURANCE COMPANY LIMITED AND OTHERS1, and

submitted that, as the claimants in the present case being

third party they are entitled to receive entire

compensation amount from any one of the tortfeasors. In

Para Nos.3 and 22 of the said judgment, the Hon'ble Apex

Court has held as under:

"3. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tortfeasors. In a case of accident caused by negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in committal of wrongful act, are a liable. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors 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 tortfeasors are before the court, it may

(2015) Supreme Court Cases 273

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determine the extent of their liability for the purpose of adjusting inter se equities between them at an appropriate stage. The liability of each and every joint tortfeasor vis-à-vis to the plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tortfeasors 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.

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-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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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 the 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 the 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."

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28. In view of the above decision, in case of

composite negligence the 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. The said judgment had been followed by Co-

Ordinate Bench of this Court in MFA No.201704/2018

C/.w. MFA No.201703/2018 decided on 26.03.2024

observing that in view of dictum of the Hon'ble Apex

Court, the claimants being the third party, are entitled to

recover the entire compensation from any one of the