Orissa High Court
Bikash Nayak vs Birendra Yadav And Another on 28 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.942 of 2017
(From the judgment dated 26th August, 2017 passed by the learned 1st
M.A.C.T., Cuttack in M.A.C. No.944 of 2011)
Bikash Nayak .... Appellant
-versus-
Birendra Yadav and another .... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. K. Panigrahi, Advocate
For Respondents : Mr. G.P. Dutta, Advocate
For Respondent No.2
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
28 February, 2023
B.P. Routray, J.
1. Present appeal by the claimant is directed against judgment
dated 26.08.2017 of learned 1st MACT, Cuttack in M.A.C. No.944 of
2011, wherein learned Tribunal has granted compensation to the tune
of Rs.6,60,000/- along with simple interest @6% per annum to the
claimant from the date of filing of the claim application, i.e.
26.12.2011 on account of death of the deceased in the motor vehicular
accident dated 21.09.2011.
2. It is submitted by Mr. K. Panigrahi, learned counsel for the
Appellant that the Tribunal while granting compensation has held that
both the vehicles, i.e. Indica Car bearing Registration No.JH-05-T-
7205 and the Truck bearing Registration No.JH-05-U-1123 are equally
negligent for the cause of accident. But in absence of the owner and
insurer of Indica Car, learned Tribunal has directed the insurer of the
Truck to pay 50% of compensation amount only. According to Mr.
Panigrahi as per the principle decided in the case of Khenyei vs. New
India Assurance Co. Ltd., 2015 (2) T.A.C. 677 (S.C.), in such cases
the entire award amount has to be paid by the insurer present in the lis
where-after the excess amount is to be recovered from the other tort-
feasor.
3. Upon hearing Mr. Dutta and perusal of the impugned judgment,
it reveals that according to the finding of the learned Tribunal, the
accident occurred due to composite negligence on the part of the
drivers of both the vehicles to the extent of 50% each. Admittedly, no
appeal has been preferred by the Insurance Company against the
impugned judgment and they have satisfied the award amount by
depositing 50% of the same before the learned Tribunal.
4. The Supreme Court in the case of Khenyei (supra) have
observed at paragraph 18 as follows:
"18. xxx xxx xxx
What emerges from the aforesaid discussion is as
follows:
(i) In the 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.
(ii) In the case of composite negligence,
apportionment of compensation between two tort-
feasors vis-à-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort-feasors 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 tort-feasors 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 tort-feasor can
recover the amount from the other in the execution
proceedings.
(iv) 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 tort feasors. In
such a case, impleaded joint tort feasor should be
left, in case he so desires, to sue the other joint tort-
feasor in independent proceedings after passing of
the decree or award."
5. In the instant case, the owner of the Car was not arrayed as a
party. The finding of learned Tribunal regarding composite negligence
of both vehicles, which is shared equally on both the Car driver as well
as Truck driver, have not been questioned by any of the parties. Thus
applying the principle as decided in the case of Khenyei (supra), the
present Insurance Company-Respondent No.2, who is the insurer of the
Truck, is directed to pay the entire compensation amount in terms of
the direction of the learned Tribunal.
6. In the result, the appeal is disposed of with a direction to the
insurer-Respondent No.2 to pay the balance amount of compensation
in terms of the direction of the learned Tribunal within a period of two
months from today by depositing the same before the learned Tribunal,
where-after the same shall be disbursed in favour of the claimant-
Appellant on such terms and proportion to be decided by the learned
Tribunal. The Insurance Company is at liberty to recover such amount
from the owner of the offending Indica Car bearing Registration
No.JH-05-T-7205 in accordance with law through a separate
proceeding.
(B.P. Routray)
Judge
B.K. Barik/Secretary
