Bangalore District Court
Raghu T N vs United India Ins Co Ltd on 3 June, 2025
KABC020162962024
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH-17
PRESENT: SRI. KANCHI MAYANNA GOUTAM B.A.L., LL.M.,
XIX ADDL. JUDGE,
Court of Small Causes & ACMM,
BENGALURU.
Dated this the 3rd day of June 2025
M.V.C.No.2600/2024
Petitioners 1. Sri Raghu T N
S/o late Nagaraja,
Aged about 54 years.
2. Smt Lakshmikanthamma M
W/o Raghu T N,
Aged about 48 years.
3. Monika T R
D/o Raghu T N.
All are R/at:
Thimahalli, Muddenahalli,
Chikkaballapur 562101.
(By Sri. K B Kumara, Adv.,)
V/s.
Respondents 1. United India Ins. Co. Ltd.,
The Manager,
Regional office, 5th and 6th floor,
Krishi Bhavan, Nrupathunga road,
SCCH-17 2 MVC No. 2600/2024
Bangalore 560001.
(By Sri. T A Mahesh Kumar, Adv.,)
2. Sri Noorullakhan
S/o Fayaz Khan,
No.449, Dayananda Nagar,
Siddapura, Jayanagar, 1st block,
Bangalore 560011.
(Exparte)
3. IFFCO - TOKIO Gen. Ins. Co.
Ltd.,
By its Manager,
No.36, Crown Point Building,
Lavelle road, Kasturba cross road,
Bangalore 560001.
(By Sri. Kiran Pujar, Adv.,)
4. Sri Veeramuthu
S/o Periyasamy,
R/at: Middle street, Manjaputhur,
Sankarapuram, Villupuram,
Kallakurichi, Tamilnadu 606208.
(Exparte)
JUDGMENT
The petitioners have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the SCCH-17 3 MVC No. 2600/2024 death of Rajeev T R, in a motor vehicle accident that occurred on 26-02-2024.
2. The case of the petitioners, in brief, is as follows:
On 26-02-2024 at about 5.30 p.m. the deceased was proceeding by riding Royal N Field motor cycle bearing No. KA.05.JY.7578 on the left side of the road on MES ring road, near CQAE gate, Yeshawanthapura, Bangalore, at that time the rider of Pulsar motor cycle bearing No. TN.15.MC.4084 ridden the same in a rash and negligent manner and came from wrong side of the said road and dashed against the motor cycle of the deceased, due to which deceased fell down on the road. Consequently, another Crane bearing No. MEG.8346 which was coming from the said road, at high speed, in a rash and negligent manner, ran over the deceased and caused the accident.
Due to the impact the deceased sustained grievous injuries to his head and all over the body.SCCH-17 4 MVC No. 2600/2024
Immediately the injured was shifted to People Tree hospital, Bangalore, wherein the doctors declared him as dead on the way to the hospital. Later the dead body was shifted to Ramaiah hospital, wherein the doctors conducted postmortem, handed over the body to the petitioners and they have conducted obsequies ceremonies by spending an amount of Rs.2,00,000/-.
At the time of accident, the deceased was an B.Tech student studying at Reva University, Yelahanka, Bangalore and was also doing electrical work as a part time job and earning Rs.25,000/- p.m. Due to the untimely death of deceased the petitioners have suffered mentally and physically.
The respondent No.1 and 3 are the insurers of the offending Crane and motor cycle respectively and respondent No.2 and 4 are the owners of the respective offending vehicles are jointly and severally liable to pay SCCH-17 5 MVC No. 2600/2024 compensation to the petitioners. Hence the petitioners prays to award compensation of Rs.90,00,000/-.
3. Inspite of service of notices, respondent No.2 & 4 owners of the offending vehicles have not appeared before the court, hence placed as Exparte.
After service of summons, respondent No.1 & 3 insurers of the offending vehicles have appeared before the court through their respective counsels and filed separate written statement.
Respondent No.1 - insurer of Crane bearing No. MEG.8346 has filed its written statement by admitting the issuance of policy and the policy was in force as on the date of accident and the liability if any is subject to the terms and conditions of the policy. Further contended that, the owner cum driver of the offending crane ie., respondent No.1 was not having valid driving license as on the date of accident. Further it has denied the cause and manner of accident, age, educational qualification SCCH-17 6 MVC No. 2600/2024 and also the income of the deceased. The compensation amount claimed by the petitioners is totally exorbitant, fashionable one and without any basis. Accordingly prays to dismiss the petition against it.
Respondent No.3 - insurer of motor cycle bearing No. TN.15.MC.4084 has filed its written statement by admitting the issuance of policy and was in force as on the date of accident and the liability if any is subject to the terms and conditions of the policy. Further contended that, there is no compliance of Sec.134(c) and 158(6) of MV Act. Further it has contended that, the negligence of the driver of the Crane bearing No. MEG.8346 was the sole reason for the cause of accident. Further contended that the rider of the offending motor cycle bearing No. TN.15.MC.4084 was not having valid driving license as on the date of accident. Further it has denied the cause and manner of accident, age, educational qualification and SCCH-17 7 MVC No. 2600/2024 also the income of the deceased. Accordingly prays to dismiss the petition against it.
4. On the basis of the rival contentions, the following issues were framed by this court:
ISSUES
1) Whether the petitioners proves that deceased Rajeev T R died in the motor vehicle accident that occurred on 26-02-2024 at about 5.30 p.m. on MES ring road, near CQAE gate, Yeshwanthapura, Bangalore city due to the rash and negligence riding of the motor cycle bearing Reg. No. TN.15.MC.4084 by its rider?
2. Whether the petitioners prove that they are the legal heirs and dependents of deceased?
3. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
4. What order or award?
5. In order to prove the claim petition, petitioner No.1 is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.19.
SCCH-17 8 MVC No. 2600/2024
6. On the other hand the 3rd respondent i.e., insurer of motorcycle bearing No.TN-15-MC-4084 has examined its official as RW.1 and got marked the documents at Ex.R1 to R3.
7. Heard the arguments on both the sides and perused the material available on record.
The learned counsel for petitioner has relied on the decisions of :
i) 2015 AIR SCW 3169 between Khenyei Vs. New India Assurance Co. Limited and others.
ii) ILR 2004 KAR 26 between Karnataka State Road Transport Corporations, by its Managing Director Vs. Arun @ Aravind and others.
At the time of arguments it is found that the issue No.1 is framed by putting on the burden on the petitioner to prove the negligence of only the rider of motor cycle bearing No. TN.15.MC.4084. But in the SCCH-17 9 MVC No. 2600/2024 petition the petitioners alleged the composite negligence of the rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No. MEG.8346. Hence it is necessary to recast the burden by putting the burden on the petitioners to prove the negligence of both alleged offending vehicles. Hence issue No.1 is recasted as follows:
Recasted Issue No.1:
Whether the petitioners proves that deceased Rajeev T R died in the motor vehicle accident that occurred on 26-02- 2024 at about 5.30 p.m. on MES ring road, near CQAE gate, Yeshwanthapura, Bangalore city due to the composite rash and negligence riding of the motor cycle bearing Reg. No. TN.15.MC.4084 by its rider and the driver of Crane bearing No. MEG.8346 ?
8. My findings on the above issues are as under.
Recasted Issue No.1: In the affirmative, Issue No.2: In the affirmative, Issue No.3: In the affirmative, Issue No.4: As per final orders for the following.-
SCCH-17 10 MVC No. 2600/2024REASONS ISSUE NO.1:
9. That by reiterating all the averments made in the petition, the petitioner No.1 has filed affidavit in lieu of chief examination, which is considered as P.W.1. In support of his claim, he has produced true copies of FIR, complaint, spot mahazar along with sketch, MLC intimation, IMV report, inquest report, PM report, IMV notices and reply notices and charge sheet as per Ex.P1 to 13.
10. As per the contents of Ex.P2 first information given by the PW.1 the FIR was came to be registered as per Ex.P1 by alleging the rash and negligent riding by the rider of motor cycle bearing No. TN.15.MC.4084 and also by the driver of Crane bearing No. MEG 8346. The contents of Ex.P1 & P2 are in consonance with the contents of petition wherein in the first information itself they have alleged about the rash and negligent driving by SCCH-17 11 MVC No. 2600/2024 the rider of motor cycle bearing No. TN.15.MC.4084 and also by the driver of Crane bearing No. MEG 8346. After the registration of FIR, the spot mahazar and rough sketch was prepared by the investigating officer as per Ex.P3 & P4. As per the contents of Ex.P3 spot mahazar and Ex.P4 rough sketch the accident spot is within the left side portion of the road in which the deceased was proceeding. Further as per the rough sketch the deceased in his motor cycle bearing No. KA.05.JY.7578 was proceeding towards Goraguntepalya junction in the left side portion of the road, but the rider of motor cycle bearing No. TN.15.MC.4084 came from Goraguntepalya junction in a wrong side and dashed against the motor cycle of the deceased. Thereby when the deceased fell down on the road, the tyre of the Crane bearing No. MEG 8346 ran over the body of the deceased. If the driver of Crane bearing No. MEG 8346 was in controllable speed and if he was maintaining safe distance he could have SCCH-17 12 MVC No. 2600/2024 avoided his vehicle crane from running over on the deceased. Thereby the rider of motor cycle bearing No. TN.15.MC.4084 by coming in wrong side dashed the deceased and the driver of Crane bearing No. MEG 8346 by driving his crane in a rash and negligent manner ran over on the body of the deceased. Thereby the contents of mahazar and spot sketch establishes the composite equal negligence of rider of motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG 8346.
11. Further the Ex.P6 is the IMV report wherein the motor cycle of the deceased has got damages in its front head light, mudguard, gear liver and also scratches on the right side crash guard and the offending motor cycle bearing No. TN.15.MC.4084 has got scratch marks on right side head light, brake, liver and mirror, but the offending Crane bearing No. MEG 8346 has not got damaged in the alleged accident. The contents of Ex.P3, SCCH-17 13 MVC No. 2600/2024 P4 and P6 helped the petitioners to prove the alleged composite equal negligence of the rider of motor cycle bearing No. TN.15.MC.4084 and also the negligence of driver of Crane bearing No. MEG 8346.
12. In the accident cases, it is settled principle of law that "RES- IPSA LOQUITUR" which means the things speaks itself, is the standing principle to know the nature of the accident. Under this principle how the negligence has to be infer is considered. In tort law, "RES- IPSA LOQUITUR" principle that allows petitioners to meet their burden of proof with under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. On perusal of Ex.P3 - contents of mahazar, Ex.P4 rough sketch along with Ex.P6 IMV report wherein the damages of the vehicles involved in the accident is mentioned prima- facie shows the equal negligence on the part of the SCCH-17 14 MVC No. 2600/2024 rider of motor cycle bearing No. TN.15.MC.4084 and also by the driver of Crane bearing No. MEG 8346. By coming from wrong side the rider of motor cycle bearing No. TN.15.MC.4084 contributed his negligence towards the accident and the driver of Crane bearing No. MEG 8346 without maintaining the safe distance and safe speed contributed his equal negligence towards the cause of death. Hence, by applying the said principle the composite equal negligence on the part of the rider of motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG 8346 to the extent of 50:50 is stands established. The Ex.P3 mahazar and Ex.P4 rough sketch being the self explanatory established the equal negligence to the extent of 50:50 on the part of the rider of motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG 8346.
13. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles SCCH-17 15 MVC No. 2600/2024 Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of SCCH-17 16 MVC No. 2600/2024 Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van.
14. In view of the ratio laid down in the authorities referred to above and applying the settled principle of law to the case at hand, which is further supported by the oral and documentary evidence adduced by PW-1, this Tribunal is of the considered opinion that the accident leading to this case indeed occurred due to the actionable equal negligence on the part of the rider of the motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG.8346 resulting in the death of Sri Rajeev T R.
15. The injury sustained by the deceased is mentioned in Ex.P7 & 8 inquest and postmortem, which SCCH-17 17 MVC No. 2600/2024 also evidentiates the nature of the accident and injuries sustained by the deceased and also the cause of death.
16. Further Ex.P13 is the charge sheet filed against the rider of the motor cycle bearing No. TN.15.MC.4084 for the offence punishable under U/Sec. 3(1) R/w Sec.181 of IMV Act and also against the driver of Crane bearing No. MEG.8346 for the offence punishable under Sec. 279 & 304 (A) of IPC. The investigating officer as per Ex.P13 charge sheet opined that the rider of the motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG.8346 driven the said respective vehicles in a rash and negligent manner.
17. The respondent No.3 even though examined its official as RW.1, the said RW.1 is not an eye witness as such his evidence in respect to negligence cannot be considered. The respondent No.2 & 4 being the owners of offending vehicles or the rider of the motor cycle bearing No. TN.15.MC.4084 or the driver of Crane SCCH-17 18 MVC No. 2600/2024 bearing No. MEG.8346 were not examined before this court to establish that there was no negligence on their part.
18. As per well settled position of law the standard of proof in claim petition like present one, is only preponderance of probabilities. Looking to the oral as well as documentary evidence of the petitioners there are sufficient materials to show that Rajeev T R died in the accident dated 26-02-2024 which is caused by the rider of the motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG.8346. Accordingly Recasted issue No.1 answered in the affirmative.
ISSUE NO.2
19. As held herein above, the petitioners have proved that Rajeev T R died on 26-02-2024 due to the injuries sustained in RTA, which is caused by respondent No.2 & 4.
SCCH-17 19 MVC No. 2600/2024
20. As contended in the petition the petitioners are the father, mother and sister of the deceased Rajeev T R. The respondents do not specifically deny the relationship of petitioners with deceased. The petitioners to prove their relationship with the deceased, have produced the notarized copies of Aadhar cards of petitioners along with deceased which are marked under Ex.P.18. During the course of recording the evidence the notarized copies of Aadhar cards are compared with the original documents and found correct.
21. As per these documents the petitioner No.1 is the father, petitioner No.2 is the mother and petitioner No.3 is the sister of deceased, but the respondents do not dispute the relationship of the petitioners with the deceased. The respondents has not adduced any evidence to disprove the relationship of the petitioners with the deceased. In the absence of contradictory evidence the evidence of the petitioners is to be accepted and it is SCCH-17 20 MVC No. 2600/2024 considered that, petitioners are the dependents of deceased and they are entitled for compensation. Accordingly, issue No.2 answered in the affirmative.
ISSUE No.3
22. As held herein above, the petitioners have proved that Rajeev T R died on 26-02-2024 due to the injuries sustained in RTA, which is caused by the rider of the motor cycle bearing No. TN.15.MC.4084 and driver of Crane bearing No. MEG.8346.
23. Now the quantum of compensation is to be decided. As per Ex.P16 DL, and Ex.P.18 -Aadhaar card of the deceased the date of birth of the deceased is 03- 03-2002, the accident was took place on 26-02-2024. If it is considered, as on the date of the accident the age of the deceased was 21 years and 11 months. Hence the age of the deceased is considered as 21 years.
24. In the petition the petitioners pleaded that the deceased was student studying final year B.Tech in SCCH-17 21 MVC No. 2600/2024 Electrical and electronics Engineering at Reva University and was also doing part time electrical work and thereby earning Rs.25,000/- p.m. In support of the same to prove his educational qualification the petitioners have produced the engineering marks cards marked at Ex.P15. The Ex.P15 supported the same, which shows that the deceased was pursuing his engineering in Electrical and Electronics Engineering. But no documents are produced to show the earning capacity of the deceased. As the deceased was Engineering student, if he completed his education he is going to earn the good salary.
25. From the evidence of PW.1, it seems very unlikely to hold that no evidence is available to consider the income of the deceased. But the Ex.P15 which evidentiates the educational qualification also shows that he was studying engineering which also shows that he was having potential career.
SCCH-17 22 MVC No. 2600/2024
26. In the judgment reported 2020 Supreme (Kar) 1335: Sherely Jeevan Vs. R.K.S.Infra Tech Pvt. Ltd., Wherein the monthly income of the deceased was considered at Rs.30,000/- since deceased was a Engineering student. However, it is to be noted here that the deceased had a bright future ahead of him and would have earned at least 30,000/- per month. The said reported judgment is of the year 2020 and the present accident is of the year 2024. Hence, the notional income of the deceased can be considered to Rs.34,000/- per month.
27. As per Sarala varma case the proper multiplier applicable to the age of deceased is 18. Since the deceased was bachelor 50% is to be deducted towards his personal expenses, then the total loss of dependency would be Rs.36,72,000/- (Rs.34,000/- X 12 X 18 = Rs.73,44,000 /- minus 50% = Rs.36,72,000/-). SCCH-17 23 MVC No. 2600/2024
28. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the income, in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.."
29. In another reported decision in Civil Appeal Nos.19-20 of 2021 in between Kirti and Another , V/s Oriental Insurance Company Ltd., as follows; SCCH-17 24 MVC No. 2600/2024
"When it comes to the second category of cases, relating to notional income for non-earning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers.
Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654: Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".SCCH-17 25 MVC No. 2600/2024
30. As per the above decisions 40% out of loss of dependency has to be granted towards future prospects which would Rs.14,68,800/-.
31. The Petitioners are the parents and sister of the deceased Rajeev. The petitioners are the parents and sister of the deceased and they lost their loving care taker. Therefore they are entitled to a sum of Rs.1,32,000/- (Rs.44,000/each. Rs.40,000/x 10% hike every three years from 2017 as per Pranay Sethi Case) under the head of loss of consortium. Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses (this amount is calculated as per Pranaya Sethi case with enhanced rate at 10% after three years).
The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 36,72,000/-
2. Loss of future prospects Rs. 14,68,800/-
3. Loss of consortium Rs. 1,32,000/-
4. Funeral expenses Rs. 16,500/-SCCH-17 26 MVC No. 2600/2024
5. Towards loss of estate Rs. 16,500/-
Total Rs. 53,05,800/-
32. Liability:- According to the petitioners the respondent No.1 & 3 are the insurers motor cycle bearing No. TN.15.MC.4084 and Crane bearing No. MEG.8346.
The respondent No.1 & 3 insurance companies of respective vehicles in their objection statement has admitted the issuance of policy to the motor cycle bearing No. TN.15.MC.4084 and Crane bearing No. MEG.8346 and the policies were in force at the time of accident.
33. The respondent No.3 being the insurer of offending motor cycle bearing No. TN.15.MC.4084 has taken specific defence that at the time of accident the rider of said motorcycle was not having valid license to ride the said vehicle.
34. In respect of this, on perusal of Ex.P13 head of charge sheet, the offences punishable under Sec. 279 of SCCH-17 27 MVC No. 2600/2024 IPC and Sec.3(1) R/w 181 of the IMV Act is invoked in the charge sheet.
35. As per the contents of charge sheet, at the time of accident one Veeramuttu is shown as the rider of the motor cycle bearing No. TN.15.MC.4084 and also stated that the said Veeramuttu was not having driving license to drive the said vehicle at the time of accident. Thereby in the Ex.P13 charge sheet necessary sections were also invoked against the respondent No.4 for riding the motor cycle without having valid driving license. Further the Ex.P.12 reply to IMV notice issued under Sec.133 of MV Act also discloses that the respondent No.4 being the owner of the said motorcycle admitted that at the time of accident the rider of said motorcycle was not having driving licence.
36. The respondent No.4 owner even after service of summons neither appeared nor produced any contrary documents to show that the rider of motor cycle bearing SCCH-17 28 MVC No. 2600/2024 No. TN.15.MC.4084 was having driving license at the time of accident. Thus, the respondent No.3 insurance company with the help of evidence of RW1 successfully established the violation of policy condition by the respondent No.4-owner of motorcycle.
37. By the evidence of RW.1 in corroboration with contents of Ex.P13 charge sheet, the respondent No.3 insurance company successfully discharged its burden that the rider of the motor cycle bearing No. TN.15.MC.4084 was not having valid DL at the time of accident and thereby the condition of the policy is violated.
38. The respondent No.3 insurance company successfully discharged the burden and proved the violation of conditions of policy as the rider of motor cycle bearing No. TN.15.MC.4084 was not having valid DL at the time of accident. Hence, next point needs to be considered is to whom the liability has to be fastened. SCCH-17 29 MVC No. 2600/2024
39. There is no dispute that at the time of accident the motor cycle bearing No. TN.15.MC.4084 was covered with insurance. But the violation of the condition of insurance policy by the respondent No.4 is stands established. As per Ex.R2 it contains the condition that it covers the risk provided, the person driving the vehicle holds an effective and valid driving licence at the time of accident and is not disqualified from holding such licence. The learned counsel for the respondent No.3 insurance company contended and argued that as the conditions of policy is violated it cannot indemnify the liability of respondent No.4- owner either by paying the compensation or paying the compensation an recovering the same by the owner later.
40. In this case, the respondent No.4 owner of the motor cycle bearing No. TN.15.MC.4084 neither contested the petition by filing the written statement or by appearing before the court nor adduced any evidence SCCH-17 30 MVC No. 2600/2024 by showing that he was having valid driving license as on the date of accident. Thereby the conduct of respondent No.4 riding the motor cycle without having driving license is a fundamental breach of policy condition and thereby the insurance company cannot be fastened with liability. The respondent No.4 being the owner cannot take the benefit of his own wrong.
41. This is very unique case where as per the reasons discussed in Issue No.1 for the death and accident the composite and collective negligence of rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No.MEG-8346 is established. For the composite negligence of the rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No.MEG-8346 the petitioners have lost their son and brother.
42. Such being the case to whom the liability has to be fastened to compensate the petitioners. In this regard SCCH-17 31 MVC No. 2600/2024 the learned counsel for the petitioner relied on the judgment of Hon'ble Supreme Court reported in 2015 AIR SCW 3169 between Khenyei V/s New India Assurance Co. Ltd. & others wherein held as follows:
2. In the appeals, the main question which arises for consideration is, whether it is open to a claimant to recover entire compensation from one of the joint tort feasors, particularly when in accident caused by composite negligence of drivers of trailor-
truck and bus has been found to 2/3rd and 1/3rd extent respectively.
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14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : SCCH-17 32 MVC No. 2600/2024
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
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18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle -SCCH-17 33 MVC No. 2600/2024
trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
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 a 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 SCCH-17 34 MVC No. 2600/2024 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.
43. Further in the judgment of Hon'ble High Court of Karnataka in ILR 2004 KAR 26 between Karnataka Road Transport Corporation by its Managing Director V/s Arun @ Arvind & others wherein it is held as follows:
11. In view of the aforesaid reasoning and decisions of Supreme Court, we have no hesitation to hold that where a claim petition is filed by the injured or legal representatives of the deceased due to injury or death arising out of use of motor vehicles due to the composite negligence of drivers of the two vehicles, the claimant can recover compensation from any one of the joint and the just compensation to which he is entitled cannot be reduced for non-impleading of the other joint tort-
feasors and therefore, the decision of the Full Bench in Ganesh's case in this behalf does not require any reconsideration.
14. In view of the above discussion, we answer the referred question by holding that the Full Bench decision in Ganesh's case does not require any reconsideration. It is seen that in an accident case, generally the Insurance Company is liable to pay compensation as per the terms of the policy. But, when the accident is on account of composite negligence of two or more vehicles, the claimant is entitled to proceed against any of the tort-feasors for full compensation for the injuries suffered or the death caused, as the liability is joint and several. The question of apportionment does not arise, if the other joint tort-feasor has not been impleaded as party. However, after ascertaining and impleading the other joint tort-feasor as a party, the SCCH-17 35 MVC No. 2600/2024 tort-feasor can exercise his right of contribution in accordance with law. In other words, when the other joint tort-feasor is not a party, the Tribunal should refrain from giving any finding about apportionment or negligence, in the absence of other tort-feasor, to avoid any exercise in futility and leave the said question of liability of joint tort-feasors to be adjudicated, if the joint tort-feasor who satisfies the award is able to find out the name of the other joint tort-feasor and seeks to exercise right of contribution in accordance with law.
By applying precedents as held in the above quoted judgment to the case on hand it is already held that for the accident the composite negligence of rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No.MEG-8346 is established.
44. When there is composite negligence the liability of tort-feasors is joint and several. The claimant can sue both or any one of joint tort-feasors. The claimants can at their option recover entire damages from any one of them and in the case of both tort-feasors are impleaded and apportionment/extent of their negligence determined by the court/tribunal one joint tort-feasor can recover amount from other in execution proceedings. In this case the petitioners being the dependents and legal heirs of SCCH-17 36 MVC No. 2600/2024 deceased Rajeev filed petition by claiming the compensation against the owners and insures of both rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No.MEG-8346. As per the reasons discussed in Issue No.1 the composite negligence to the extent of 50:50 of the rider of motor cycle bearing No. TN.15.MC.4084 and the driver of Crane bearing No.MEG- 8346 is also established by the petitioners. As held in the above quoted judgments when the accident is on account of composite negligence of two or more vehicles the claimant is entitled to proceed against any of the tort- feasor for full compensation and the question of apportionment does not arise. In this case all the joint tort-feasors and their insurers are made as parties, hence, in this case it is just and necessary to direct the insurer of crane to pay the entire compensation amount and recover the 50% of compensation amount from the owner of rider of motor cycle bearing No. TN.15.MC.4084 SCCH-17 37 MVC No. 2600/2024 i.e., respondent No.4 by filing execution proceedings. The petitioner is entitle for compensation with interest at the rate of 6% p.a., Accordingly, this issue answered partly in the affirmative.
ISSUE NO.4:-
45. For the foregoing reasons, I proceed to pass the following:
ORDER The petition filed by the petitioners U/s. 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioners No.1 to 3 are entitled for total compensation amount of Rs.53,05,800/-(Rupees Fifty three lakhs five thousand eight hundred only) with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.1, 2 and 4 are jointly and severally liable to pay the compensation.
The case against the respondent No.3 stands dismissed.SCCH-17 38 MVC No. 2600/2024
The respondent No.1 is directed to deposit the entire compensation amount within 60 days from the date of this judgment and thereafter recover the 50% of compensation amount along with its interest from the respondent No.4.
The petitioner No.1 to 3 are entitled for the compensation at the ratio of 30:50:20.
Out of total compensation awarded to the Petitioner No.1 to 3, 50% of compensation shall be released in their favour on their proper identification and remaining 50% shall be kept in Fixed Deposit in any Scheduled Bank, for a period of three years, in their names.
Advocate fee is fixed at 1,500/-.
Draw the award accordingly.
(Dictated to the stenographer directly on the computer, corrected by me and then pronounced in open court on this the 3rd day of June, 2025).
(Kanchi Mayanna Goutam) XIX ADDL.JUDGE, Court of Small Causes & MACT BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW.1 Sri Raghu T N. SCCH-17 39 MVC No. 2600/2024 List of documents exhibited on petitioner's side:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 & 4 Spot mahazar along with sketch Ex.P5 MLC intimation Ex.P6 IMV report Ex.P7 Inquest report Ex.P8 PM report Ex.P9 to 12 IMV notices and replies Ex.P13 Charge sheet Ex.P14 Notarized copy of ID card Ex.P15 Notarized copies of Engineering marks cards Ex.P16 & 17 Notarized copies of DL and RC Ex.P18 Notarized copies of Aadhar card Ex.P19 Death certificate
List of witnesses examined on respondents' side:
RW.1 : Sri Likith K C. List of documents exhibited on respondents' side:
Ex.R1 : Authorisation letter Ex.R2 : Insurance policy Ex.R3 : Reply to notice U/Sec.133 (Kanchi Mayanna Goutam) XIX ADDL.JUDGE, Court of Small Causes & MACT Digitally signed by KANCHI BENGALURU. KANCHI MAYANNA MAYANNA GOUTAM Date: GOUTAM 2025.06.13 11:08:49 +0530