Karnataka High Court
Sarojamma vs Ram Rathan Sikhwal on 18 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
M.F.A. No.4854/2017 C/W
M.F.A. No.4855/2017,
M.F.A. No.4856/2017 (MV-D)
M.F.A. No.4854/2017
BETWEEN:
1. SAROJAMMA
W/O. LATE M.R. THIPPESWAMY @ THIPPANNA,
AGED ABOUT 58 YEARS,
2. NIRMALA
D/O. LATE M.R. THIPPESWAMY @ THIPPANNA,
AGED ABOUT 32 YEARS,
3. SRINIVASA
S/O. LATE M.R. THIPPESWAMY @ THIPPANNA,
AGED ABOUT 30 YEARS,
ALL ARE R/O. MALENAHALLY VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT - 577 501. ... APPELLANTS
(BY SRI SHASHIDHARA R., ADVOCATE)
AND:
1. RAM RATHAN SIKHWAL
S/O. MOHAN LAL SIKHWAL, MAJOR,
OWNER OF LORRY BEARING
NO.RJ-27/G-9242, JADUKA MOHALLA,
SHEDA DISTRICT, BILWAR,
RAJASTHAN - 311 001.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
-: 2 :-
1ST FLOOR, THIRUVALLI COMPLEX,
P.B.ROAD, DAVANAGERE - 577 001. ... RESPONDENTS
(BY SMT. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R-1;
SRI K. SURESH, ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.07.2016
PASSED IN MVC NO.120/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL AT HOLALKERE, DISMISSING THE CLAIM PETITION
FOR COMPENSATION.
M.F.A. No.4855/2017
BETWEEN:
M.R. KRISHNAPPA
S/O. LATE B. RANGAPPA,
AGE 56 YEARS,
WORKING AS ASST. PROFESSOR,
UNIVERSITY COLLEGE OF MANDYA BRANCH,
BANGALORE UNIVERSITY,
R/O. MALENAHALLY VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT - 577 501. ... APPELLANT
(BY SRI SHASHIDHARA R., ADVOCATE)
AND:
1. RAM RATHAN SIKHWAL
S/O. MOHAN LAL SIKHWAL, MAJOR,
OWNER OF LORRY BEARING
NO.RJ-27/G-9242,
JADUKA MOHALLA,
SHEDA DISTRICT, BILWAR,
RAJASTHAN - 311 001.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, THIRUVALLI COMPLEX,
P.B.ROAD, DAVANAGERE - 577 001. ... RESPONDENTS
(BY SMT. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R-1;
SRI K. SURESH, ADVOCATE FOR R-2)
-: 3 :-
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.07.2016
PASSED IN MVC NO.119/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT AT HOLALKERE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
M.F.A. No.4856/2017
BETWEEN:
SHIVAMURTHY @ MURTHAPPA
S/O. RAMAPPA,
AGED ABOUT 52 YEARS,
AGRICULTURIST,
R/O. MALENAHALLY VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT - 577 501. ... APPELLANT
(BY SRI SHASHIDHARA R., ADVOCATE)
AND:
1. RAM RATHAN SIKHWAL
S/O. MOHAN LAL SIKHWAL, MAJOR,
OWNER OF LORRY BEARING
NO.RJ-27/G-9242,
JADUKA MOHALLA,
SHEDA DISTRICT, BILWAR,
RAJASTHAN - 311 001.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, THIRUVALLI COMPLEX,
P.B. ROAD, DAVANAGERE - 577 001. ... RESPONDENTS
(BY SMT. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R-1;
SRI K. SURESH, ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.07.2016
PASSED IN MVC NO.117/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT AT HOLALKERE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-
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JUDGMENT
Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. These three appeals are filed by the claimants assailing the judgment in MVC.No.119/2014 C/w. MVC.Nos.120/2014 and 117/2014 filed under Section 163- A of the Motor Vehicles Act, 1988 (for short 'the Act') being aggrieved by the dismissal of their claim petitions on 12/07/2016 by the Court of the Senior Civil Judge & Addl. Motor Accident Claims Tribunal at Holalkere (hereinafter referred to as "the Tribunal" for the sake of brevity).
3. For the sake of convenience, the parties shall be referred to in terms of their ranking before the Tribunal.
4. The injured claimant in MVC.No.117/2014 Shivamurthy @ Murthappa, deceased Smt.Kariyamma, M.R.Thippeswamy and others were traveling from Malenahalli to Bangalore City in Maruthi Omni bearing Registration No.KA-16/B-2572, when they were near Kora Village Bus Stand, Tumkur Taluk and District, a lorry bearing registration No.RJ-27/G-9242 was proceeding in -: 5 :- front of their vehicle. According to the claimants, the lorry without any signal and indication or following the traffic rules suddenly stopped in the middle of the road. As a result, the Maruthi Omni van dashed against the lorry resulting in Shivamurthy sustaining grievous injuries, he was taken to District Hospital, Tumkur and later to Victoria Hospital, Bangalore, where he spent a huge amount towards his medical expenses. Contending that he has sustained permanent disability on account of the injuries in the accident, he filed the claim petition seeking compensation on various heads.
5. The claimants in MVC.No.120/2014 are the legal representatives of deceased M.R. Thippeswamy @ Thippanna, also one of the inmates of the Maruthi Omni Van, who had claimed compensation on account of death of M.R. Thippeswamy by filing the said claim petition. MVC.No.119/2014 is filed by M.R.Krishnappa seeking compensation on account of death of Smt.Kariyamma. All the three cases were clubbed together by Tribunal.
6. In response to the notices issued by the Tribunal, respondent No.1 being the owner of the lorry and -: 6 :- respondent No.2 being the insurer of the lorry appeared and filed their respective written statements. Respondent No.1 denied the averments made in the claim petitions and contended that the driver of the lorry was not at all negligent in driving the said lorry. That the entire negligence was on account of the driver of Maruthi Omni Van. That the claim petitions were without any merit and the same may be dismissed. Alternatively, it was contended that in the event the Tribunal is to award any compensation, then respondent No.1 would be indemnified by respondent No.2/insurer of the lorry. The insurance company also filed its written statement denying the averments made in the claim petitions and contended that the accident had occurred on account of rash and negligent driving of the Maruthi Omni Van and that there was no negligence on the part of the driver of the lorry. It was further contended that the petitions were bad for non- joinder of necessary parties and the owner as well as insurer of the Maruthi Omni had also to be arrayed as respondents in the petitions. Insurance company has also sought for dismissal of the petitions.
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7. On the basis of the rival pleadings, the Tribunal has framed the following issues in each of the claim petitions:
ISSUES IN MVC.NO.119/2014
(i) Whether the petitioners prove that, Smt.Kariamma W/o.Late B.Rangappa, died in a road traffic accident on 01/08/2011 at about 7.45 p.m., Kora Bus stand, Kora Hobli, Tumkur Taluk, due to rash and negligent driving of lorry bearing No.RJ-27/G-9242 by its driver?
(ii) Whether respondent No.2 proves that, the petition is bad for non-joinder of necessary parties?
(iii) Whether the petitioner is entitled for the compensation? If so, how much and from whom?
(iv) What order or award?
ISSUES IN MVC.NO.120/2014
(i) Whether the petitioner proves that, Sri
M.R.Thippeswamy @ Thippanna S/o.
Late B.Rangappa, died in a road traffic accident on 01/08/2011 at about 7.45 p.m., Kora Bus Stand, Kora Hobli, Tumkur Taluk, due to rash and negligent driving of lorry bearing No.RJ-27/G-9242 by its driver?-: 8 :-
(ii) Whether respondent No.2 proves that, the petition is bad for non-joinder of necessary parties?
(iii) Whether the petitioner is entitled for the compensation? If so, how much and from whom?
(iv) What order or award?
ISSUES IN MVC.NO.117/2014
(i) Whether the petitioner proves that he
has sustained injuries in a road traffic accident on 01/08/2011 at about 7.45 p.m., Kora Bus Stand, Kora Hobli, Tumkur Taluk, due to rash and negligent driving of lorry bearing No.RJ-27/G-9242 by its driver?
(ii) Whether respondent No.2 proves that, the petition is bad for non-joinder of necessary parties?
(iii) Whether the petitioner is entitled for the compensation? If so, how much and from whom?
(iv) What order or award?
8. In support of their case, the claimants
examined three witnesses in respect of each claim petition and produced thirty one documents marked as Exs.P-1 to P-31 while the respondents did not let-in any evidence in -: 9 :- the matters. On the basis of the evidence on record, the Tribunal answered issue No.1 in the negative, issue No.2 in the affirmative and issue No.3 as does not arise for consideration in all the petitions and ultimately dismissed all the claim petitions as not maintainable. Being aggrieved by the judgment and award of the Tribunal, claimants have preferred these appeals.
9. We have heard learned counsel for the appellants, learned counsel for respondent/insurer and learned counsel for respondent/lorry owner and perused the material on record.
10. Learned counsel for appellants-claimants contended that the Tribunal was not right in dismissing the claim petitions which were filed under Section 163A of the Act. He submitted that two vehicles were involved in the accident namely, Maruthi Omni Van bearing No.KA-16/B- 2572 as well as lorry bearing No.RJ-27/G-9242 and that when the claim petitions were filed under Section 163A of the Act, as two vehicles were involved in the accident, the Tribunal had to adjudicate the claim petitions having regard to the dictum of the Hon'ble Supreme Court in the -: 10 :- case of United India Insurance Company Limited vs. Sunil Kumar [(2014) 1 SCC 680] (Sunil Kumar). He further contended that the Tribunal has answered issue No.2 in the affirmative by holding that the claim petitions were bad for non-joinder of necessary parties. He placed reliance on another judgment of the Hon'ble Supreme Court in the case of Khenyei vs. New India Assurance Co. Ltd. [(2015) 9 SCC 273] (Khenyei) to contend that in the case of composite negligence, it is not necessary for the claimants to array the owner and the insurer of both the vehicles. It is sufficient if one of insurers and owner of one of the vehicles are arrayed as respondents in the claim petitions. That the Tribunal in the instant case ought not to have dismissed the claim petitions. Hence, the judgment and awards of the Tribunal may be set aside and the matters may be remanded for a fresh adjudication.
11. Per contra, learned counsel for the respondent/ insurer as well as the owner of the lorry in question supported the judgment and awards of the Tribunal and contended that the Tribunal has clearly held that the total negligence was on the part of the driver of the Maruthi Omni Van and that the driver of the lorry was not at all -: 11 :- negligent in causing the accident, but in the instant case, the owner and driver of the Maruthi Omni Van are not arrayed as parties/respondents in the claim petitions. Therefore, the Tribunal was justified in dismissing the claim petitions on account of non-joinder of necessary parties. It is further submitted that even in a case where the claim petition is filed under Section 163-A of the Act, the fact of negligence has to be gone into when two vehicles are involved and in the instant case, issue No.1 is answered in the negative by holding that there was no negligence on the part of the driver of the lorry and hence, the Tribunal has dismissed the claim petitions. There is no merit in these appeals and hence, the appeals may be dismissed.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the Tribunal was justified in dismissing the claim petitions?
(ii) What order?
13. The fact that two vehicles were involved in the accident namely, lorry bearing No.RJ-27/G-9242 and -: 12 :- Maruthi Omni Van bearing registration No.KA-16/B-2572 is not in dispute. However, the Tribunal has lost sight of the fact that the claim petitions were filed under Section 163-A of the Act and also the fact that in the case of involvement of two vehicles, it is unnecessary for the claimants to array the owners and insurers of both the vehicles as respondents. When a claim petition is filed under Section 163-A of the Act, the grant of compensation would be on the basis of structured formula as per second schedule to the Act. In the case of Sunil Kumar supra, the Hon'ble Supreme Court has observed as under in paragraph Nos.8 and 9 of the said judgment:
"8. From the above discussion, it is clear that grant of compensation under Section 163- A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), -: 13 :- to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."
It has been categorically observed that when a claim petition is filed under Section 163A of the Act, it is not permissible for the insurer to raise any defence of -: 14 :- negligence otherwise it would be like a claim petition filed under Section 166 of the Act.
14. In the circumstances, we hold that the Tribunal has erred in its approach to the adjudication of the claim petitions filed under Section 163A of the Act. More significantly, the Tribunal has answered issue No.1 in the negative and on that basis it has held that the claim petitions were not maintainable because the owner and insurer of the Maruthi Omni Van were not arrayed as parties in the claim petitions. The said approach of the Tribunal is also erroneous for the reason that in the case of composite negligence or involvement of more than one vehicle, where there are joint tortfeasors and where negligence would have to be apportioned and inter se liability has to be determined, impleadment of joint tortfeasors is not necessary. Even if a sole tortfeasor is impleaded, it is sufficient. Inter se liability of the tort feasors would have to be worked independently. In this regard, it would be useful to refer to paragraph No.22 of the judgment of the Hon'ble Supreme Court in Khenyei's case which is extracted as under. In the said judgment, -: 15 :- the Hon'ble Supreme Court has approved the Full Bench judgment in the KSRTC vs. Arun [AIR 2004 Kar. 149].
"22. What emerges from the aforesaid discussion is as follows :
22.1. In the case of composite negligence, 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.
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 payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them -: 16 :- have been impleaded and the apportionment/ extent of their negligence has been determined by the court/Tribunal, in 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."
15. It is possibly on account of the fact that the Tribunal answered issue No.1 in the negative and issue No.2 in the affirmative by holding that the entire liability was on the driver of the Maruthi Omni Van and as the driver and insurer of the said vehicle were not arrayed as parties, the claim petitions came to be dismissed. In the circumstances, we are of the view that the dismissal of the claim petitions is not in accordance with law. Point Nos.1 and 2 are answered accordingly. Hence, the judgment and awards of the Tribunal are set aside. The matters are remanded to the Tribunal for reconsideration in light of the -: 17 :- aforesaid judgments of the Hon'ble Supreme Court and in accordance with law.
16. Since the parties are represented by their respective counsel, they shall appear before the Tribunal, Holalkere, Chitradurga, on 29/07/2019 without expecting any separate notices from the said Court.
17. In the result, these appeals are allowed and remanded to the concerned Tribunal in the aforesaid terms.
Sd/-
JUDGE Sd/-
JUDGE S*