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Judgment
S. Abdul Nazeer, J—This appeal is directed against the judgment and award in MVC No. 461/2012 dated 18.05.2013 on the file of the II Additional Senior Civil Judge and Additional MACT-VI, Chitradurga.
The appellant filed the aforesaid claim petition seeking compensation on account of the injuries sustained by her in a motor vehicle accident occurred on 22.7.2010. The case of the appellant is that she was travelling in an auto rickshaw bearing No. KA-06-B-4272. When the auto rickshaw reached Lingadahalli cross, the offending bus belonging to the respondent - Corporation came from the opposite direction in a rash and negligent manner and dashed against the auto, as a result of which, the appellant and other inmates of the auto rickshaw sustained grievous injuries. They were shifted to the hospital for treatment.
The claimant has not made the owner and the Insurer of the auto rickshaw as parties to the claim petition. She has sought compensation only against the Corporation.
The respondent - Corporation has entered appearance and opposed the claim petition.
The Tribunal on appreciation of the materials on record has apportioned the negligence on the part of the offending bus and the auto rickshaw in the ratio of 60:40. The Tribunal has awarded Rs. 5,000/- towards compensation and directed the respondent - Corporation to pay its share of compensation in a sum of Rs. 3,000/-.
The contention of the learned counsel for the claimant is that the claimant had sustained serious injuries in the accident. The Tribunal has not properly assessed the compensation. It has granted global compensation of Rs. 5,000/- and directed the Corporation to pay 60% of the compensation, out of the aforesaid award. This is because of the composite negligence of the driver of the bus belonging to the Corporation and the driver of the auto rickshaw. The Tribunal ought to have directed the Corporation to pay the entire compensation. In this connection he has relied on the decision of the Apex Court in Khenyei Vs. New India Assurance Co. Ltd. and Others(2015) 4 ABR 210 : (2015) 2 ACC 657 : (2015) ACJ 1441 : (2015) 8 AD (SC) 414 : AIR 2015 SC 2261 : (2015) 3 AKR 157 : (2015) 4 ALD 98 : (2015) 3 AWC 2945 : (2015) 4 BomCR 21 : (2015) 2 CDR 456 : (2015) 3 JLJR 321 : (2015) 3 KHC 70 : (2015) 2 KLJ 593 : (2015) 4 MLJ 364 : (2015) 2 RCR(Civil) 1019 : (2015) 6 SCALE 194 .
On the other hand, learned counsel appearing for the respondent- Corporation has sought to justify the impugned judgment and award.
As noticed above, the claimant has not made the owner, Insurer and the Driver of the auto rickshaw as parties to the claim petition. The Corporation has denied the occurrence of the accident and also its liability to pay the compensation. It was contended that the accident had occurred on account of the rash and negligent driving of the auto rickshaw by its driver. The parties have let in evidence. On appreciation of the materials on record, the Tribunal has held that the Driver of the bus belonging to the Corporation and the Driver of the auto rickshaw are responsible for the accident in the ratio of 60:40. This finding of the Tribunal has not been challenged by the Corporation.
In Khenyei Vs. New India Assurance Co. Ltd. and Others(2015) 4 ABR 210 : (2015) 2 ACC 657 : (2015) ACJ 1441 : (2015) 8 AD (SC) 414 : AIR 2015 SC 2261 : (2015) 3 AKR 157 : (2015) 4 ALD 98 : (2015) 3 AWC 2945 : (2015) 4 BomCR 21 : (2015) 2 CDR 456 : (2015) 3 JLJR 321 : (2015) 3 KHC 70 : (2015) 2 KLJ 593 : (2015) 4 MLJ 364 : (2015) 2 RCR(Civil) 1019 : (2015) 6 SCALE 194 , the Hon''ble Supreme Court has considered the question relating to payment of compensation in cases of composite negligence. It has been held thus:
"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 tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors 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 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 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.
(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 tortfeasors. In such a case, impleaded joint tortfeasors should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."
It is clear from the aforesaid decision that apportionment of compensation between two tortfeasors is not permissible. The claimant can recover at his option whole damages from any one of them. In the instant case, only one of the tortfeasor has been made a party namely, the driver of the Corporation. The owner and the Driver of the auto rickshaw and its Insurer have not been made parties. In the circumstances, the Tribunal ought to have directed one of the tortfeasors who is a party to the claim petition, namely, the Corporation to pay the entire compensation.
That brings to me to the next question as to whether the claimant is entitled for enhancement of compensation?
The wound certificate is at Ex. P6 which shows that the claimant had sustained abrasion over back of right elbow and blunt injury on right hip. She has not produced any other materials in support of her contention that she had sustained grievous injuries. The Doctor who had treated her has not been examined. In the circumstances, the Tribunal has awarded global compensation of Rs. 5,000/- which is just and reasonable.
In the result, the appeal succeeds and it is accordingly allowed in part. The respondent - Corporation is directed to deposit a sum of Rs. 5,000/- awarded by the Tribunal. However, liberty is reserved to the Corporation to recover 40% of the compensation awarded by the Tribunal from other tortfeasors namely, the owner and the driver of the auto rickshaw bearing No. KA-06-B-4272 in accordance with law. No costs.