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2020 DIGILAW 1231 (KAR)

National Insurance Co. Ltd. v. Laxmi

2020-06-25

S.G.PANDIT

body2020
JUDGMENT S.G. Pandit, J. - The appellant-Insurance Company is before this Court in this appeal challenging the saddling of 50% of composite negligence under judgment and award dated 18.08.2011 in MVC No.1323/2010 on the file of the Member, MACT-XII, Bellary, praying for absolving it from liability. 2. The appellant was respondent No.6 before the Tribunal and insurer of the car bearing registration No.KA-34/M-7947; respondent No.1 herein was claimant who was traveling in the said car, respondent No.3 herein was owner of the tractor and trailer bearing registration No.KA-16/TA-451 and respondent No.4 herein was insurer of the tractor and trailer. 3. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.25 lakhs for the injuries sustained by the claimant in a road traffic accident. It is stated that on 18.12.2009, the claimant along with her brother was proceeding in a car bearing registration No.KA- 34/M-7947 and when they reached near Giriyamanahalli gate, tractor and trailer bearing registration No.KA-16/TA-451 driven by respondent No.2 herein in a rash and negligent manner without there being any indicator suddenly turned the tractor to right side and dashed to the car in question. Due to which, car was totally damaged and the claimant who was inmate of the car sustained multiple comminuted fracture to her left hand, nose and other parts of the body. It is stated that she was aged 32 years and earning a sum of Rs.18,000/- per month. 4. On service of notice, Respondents No.1 to 3 and 6 appeared before the Tribunal and filed their statements, whereas respondents 4 and 5 were placed exparte. Respondents No.1 and 2 before the Tribunal who are driver and owner of the tractor and trailer stated that the tractor and trailer was moving slowly and carefully on SH-19, at that time, car bearing registration No.KA-34-M-7947 came in a rash and negligent manner without observing traffic rules in a high speed and dashed to the backside of the tractor. Further, they stated that the policy issued by respondent No.4 was in force and driver of the vehicle was having valid and effective driving license as on the date of the accident. Respondent No.3-insurer of the tractor and trailer before the Tribunal filed its statement contending that the driver of the car himself contributed to the accident and denied the claim as baseless and false. Respondent No.3-insurer of the tractor and trailer before the Tribunal filed its statement contending that the driver of the car himself contributed to the accident and denied the claim as baseless and false. Further it also contended that the driver of the car had no valid and effective driving license and insured has violated terms and conditions of policy. Respondent No.6-insurer of the car before the Tribunal filed statement contending that it is not liable to pay any compensation as the claimant claimed compensation only from respondent Nos.1 to 3. Further, it also contended that as the claimant herself has admitted in the claim petition that the alleged accident occurred due to sole negligence of the driver of the tractor and trailer, respondent No.6 is not liable or responsible for payment of compensation or any part thereof. It also contended that the police have charge sheeted the driver of the tractor and trailer. Hence, it prayed to absolve it from liability. 5. The claimant herself examined as PW1 and examined the doctor as PW2 apart from marking the documents as per Exs.P1 to P17. Respondent No.4 herein who was insurer of the car examined one witness as RW1 and marked one document as Ex.R1-copy of insurance policy. The Tribunal on examination of material on record both oral and documentary, awarded total compensation of Rs.2,32,059/- with interest at the rate of 6% per annum from the date of petition till its realization and held that both the driver of the tractor and trailer and driver of the car are equally responsible for the occurrence of the accident and saddled liability to an extent of 50% each on them and consequently, directed the insurer of both car and tractor and trailer to deposit 50% of the compensation each. The insurer of car aggrieved by the finding of composite negligence and saddling the liability to an extent of 50% is in appeal before this Court. 6. Learned counsel for the appellant-insurer would submit that the Tribunal committed an error in holding that both the driver of the tractor and trailer and driver of the car are responsible for the occurrence of the accident and in saddling 50% of composite negligence on both of them. It is his submission that it is for the claimant to seek compensation from any one of the tort-feasors, when two vehicles are involved. It is his submission that it is for the claimant to seek compensation from any one of the tort-feasors, when two vehicles are involved. Further, he submits that there should be sufficient evidence and material to come to the conclusion and to give a finding of composite negligence. It is his submission that in the present case, allegation of rash and negligent driving is against the driver of the tractor and trailer and no allegation whatsoever is alleged against the driver of the car. There is no material nor evidence to determine the extent of negligence between joint tort-feasors. Moreover, he submits that the insurer of tractor and trailer failed to examine either the driver of the tractor and trailer or car. In the absence of any material or evidence to say that there was rash and negligent driving by the driver of the car, the Tribunal could not have given a finding of composite negligence and saddled 50% liability on the driver of the car. In that regard, he relies on the decision of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Company Ltd., (2015) ACJ 1441 . Further, he also submits that charge sheet has been filed against the driver of the tractor-trailer. Thus, he prays for allowing the appeal by holding that the driver of the tractor and trailer is wholly responsible for the accident and to saddle the entire liability on respondents No.1 and 2, consequently, direct the respondent No.3-insurer of the tractor and trailer to indemnify the respondents No.1 and 2. 7. Per contra, learned counsel for respondent No.4-Insurer of the tractor and trailer submits that the Tribunal has rightly given a finding of composite negligence and saddled 50% liability on both insurer of the car and tractor and trailer. It is his submission that the insurer of the car even though examined RW1- officer of the insurance company has failed to examine any eye-witness or driver of the car. In that circumstance, the finding of the Tribunal is proper. Learned counsel would invite the attention of this Court to Ex.P3-Mahazar and submit that the accident occurred solely due to negligent driving of the driver of the car and while overtaking the tractor and trailer dashed to the trailer. In that circumstance, the finding of the Tribunal is proper. Learned counsel would invite the attention of this Court to Ex.P3-Mahazar and submit that the accident occurred solely due to negligent driving of the driver of the car and while overtaking the tractor and trailer dashed to the trailer. Further, he submits that mere filing of the charge sheet against the driver of the tractor and trailer would not be decisive factor. The Tribunal has rightly given a finding of 50% composite negligence and liability on the driver of the car and made respondent No.6-Insurance to pay compensation which needs no interference. 8. Having heard the learned counsel for the parties and on perusal of the trial Court records, the only point that would fall for consideration is as to, whether the Tribunal is justified in giving a finding of composite negligence and saddling of 50% liability on both drivers of the tractor and car. My answer to the above point would be in the negative for the following reasons: 9. The accident that occurred on 18.12.2009 involving tractor and trailer bearing registration No.KA- 16/TA-451 and car bearing registration No.KA-34/M- 7947 is not in dispute in this appeal. The appellant who is respondent No.6 before the Tribunal is in appeal challenging the finding of composite negligence and saddling the liability to an extent of 50% on it. According to the version of the claimant, the accident occurred at Giriyamanahalli gate on SH-19 and it is stated that the tractor and trailer came in a rash and negligent manner without giving turn indicator, suddenly turned right side and dashed to the car, resulting in damage to the car and injuries to the claimant. In the statement of driver of the car i.e. brother of the claimant, it is stated that the driver of the tractor and trailer without giving any indication negligently came in a rash and negligent manner and took right turn, due to which the trailer dashed to the front side of the car and the claimant sustained injuries. Ex.P3-Mahazar would indicate that the accident had taken place on SH-19 road which is 30 feet width. It also notes that the front side of the car i.e. bonnet and windscreen glass were damaged; whereas, the tractor and trailer was toppled around 25 feet from the car. Ex.P3-Mahazar would indicate that the accident had taken place on SH-19 road which is 30 feet width. It also notes that the front side of the car i.e. bonnet and windscreen glass were damaged; whereas, the tractor and trailer was toppled around 25 feet from the car. Ex.P4-Motor Vehicles Accident report discloses that front bonnet and bumper damaged, front windscreen glass broken and right side head light damaged to the car, whereas it also notes that rear door of the trailer was damaged. 10. In the evidence, the claimant had deposed that the accident occurred solely due to negligent driving of the tractor and trailer. Further, the claimant stated that the driver of the tractor and trailer without giving turn indicator, suddenly turned right side and dashed to the car in question. The appellant who was respondent No.6 before the Tribunal cross-examined the claimant and suggested that the accident occurred due to negligent driving of the driver of the tractor and trailer to which the claimant PW1 answered as true. PW-1 was also cross-examined by respondent No.3- insurer of the tractor-trailer, but nothing in their favour is elicited. No suggestion to the effect that driver of the tractor turned right only after signaling, when it is the case of the claimant that without signal right turn was taken. The appellant examined its officer as RW1 and tried to prove that the accident occurred due to negligent driving of the driver of the tractor and trailer. RW1 was cross-examined by the insurer of the tractor and trailer i.e. respondent No.3. But, nothing has been elicited with regard to accident except suggesting that he is not an eye-witness to the accident. Neither respondent No.3-insurer of tractor nor respondent No.6- insurer of the car examined the respective driver of the tractor and trailer and car. The driver either of the tractor and trailer or car would have been the best witness to depose with regard to occurrence of the accident and negligence. Moreover, the charge sheet was filed under Section 279 of IPC against respondent No.1 before the Tribunal i.e. driver of the tractor and trailer, but no charge sheet nor counter complaint filed against the driver of the car. On scrutiny of the entire records, there is no material or iota the evidence to indicate the negligence against the driver of the car. 11. On scrutiny of the entire records, there is no material or iota the evidence to indicate the negligence against the driver of the car. 11. The Hon'ble Apex Court in the case of Khenyei (supra), after discussing case laws, with regard to question of liability on joint tort-feasors, formulated the following principles: 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- -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-feasors 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. 12. A reading of above decision would indicate that incase of composite negligence, the claimant is entitled to sue both or any one of the joint tort-feasors claiming compensation. Where joint tort-feasors are party to the proceedings, when there is evidence on record which is sufficient to determine inter se extent of composite negligence, the Tribunal to determine the extent of negligence between joint tort-feasors. Where joint tort-feasors are party to the proceedings, when there is evidence on record which is sufficient to determine inter se extent of composite negligence, the Tribunal to determine the extent of negligence between joint tort-feasors. In the instant case, even though the joint tort-feasors are parties to the proceedings before the Tribunal, there is no sufficient evidence to hold that there is composite negligence and to fix the liability on respondent No.6 before the Tribunal who is appellant herein. Merely relying on Ex.P4-MVA report which would indicate the damages caused to the front side of the car, the Tribunal could not have come to the conclusion that the driver of the car was also negligent and contributed to the occurrence of the accident, without there being any other corroborative evidence. On the other hand, the charge sheet filed against the driver of the tractor and trailer, the evidence of PW1-claimant and nonexamination of any of the drivers would suggest that there is no evidence on record to come to the conclusion that there was negligence on the part of the driver of the car to give a finding of composite negligence. Thus, the finding with regard to composite negligence is set-aside and liability fixed on the appellant-respondent No.6 before the Tribunal is set-aside. Respondents 2 and 3 before the Tribunal are jointly and severally liable to make good compensation. Respondent No.3-insurer of the tractor-trailer to deposit entire compensation amount before the Tribunal. The amount in deposit before this Court be transmitted to the concerned Tribunal. 13. With the above observations, the appeal is allowed.