New India Assurance Co. Ltd. vs Sharadamma

Mrs. S. Sujatha, J.—This appeal is by the Insurer challenging the Judgment and Order passed by the Motor Accident Claims Tribunal,

Bangalore, [the Tribunal, for short] in MVC No. 2194/2009

Briefly stated the facts are:

That the widow, children and parents of the deceased Govinda instituted a claim petition before the Tribunal seeking compensation for the death of

the said Govinda in the road traffic accident on 14.5.2008 alleging negligence of the rider of the motor cycle bearing registration Nos. KA.

02.EA.3208 and KA.51.E.3303. Admittedly, the petition was filed under Section 163A of the Motor Vehicles Act, 1988 [''Act'', for short]. The

Appellant/Insurer entered appearance and resisted the claim, inter alia, contending that the accident took place due to the negligence of the

deceased himself and the appellant/insurer of the motor cycle driven by the deceased was not liable. The Tribunal, on appreciation of the evidence

on record, held that the accident took place due to the involvement of both the vehicles. As such, the owner/insurer of both the vehicles are liable

to pay compensation in equal proportion in the ratio of 50:50 and awarded compensation of Rs. 4,94,100/- with interest at 6% per annum. Being

aggrieved, the appellant/insurer is before this Court, inter alia, contending that the Tribunal grossly erred in fixing the liability to the extent of 50%

on the appellant/insurer while considering the claim petition under Section 163A of the Act, having held that the accident occurred due to the

negligence of the deceased.

Per contra, learned Counsel appearing for the claimants supports the impugned Judgment and Award and contends that Section 163A of the

Act is a special provision based on ''no fault liability''. The Tribunal was justified in awarding the compensation and directing the owner/insurer of

both the vehicles to make payment of the compensation equally i.e., 50% each.

Learned Counsel appearing for Respondent No. 8 supports the arguments advanced by the learned counsel for the claimants.

Heard the learned Counsel for the parties and perused the material on record.

The only point that arises for consideration in this appeal is whether the Tribunal is justified in directing the owner/insurer of both the vehicles

involved in the accident to make the payment of compensation awarded equally?

The issue involved in this case is no more res integra in view of the Judgment of this Court in the case of ''Thimmaiah v. The Managing

Director, KSRTC'' in MFA No. 3626/2013 [DD-14.7.2015] wherein the Division Bench of this Court following the Judgment of the Hon''ble

Apex Court in the case of ''Khenyei v. New India Assitrance Company Limited And Others'' reported in 2015 ACJ 1441 and the

Judgment of this Court in the case of (M/s. United India Insurance Company Limited v. Radha A. Kamath And Others'' reported in 2011

[4] AIR KAR. R. 292, has categorically held thus:

The claimant can recover the entire compensation from one of the joint tortfeasors. In the case on hand, since the owner/Insurer of the motor

cycle on which the deceased was travelling is not arrayed as respondent, he is entitled to recover the entire compensation from the

respondent/Corporation. In the light of the judgment in Radha A. Kamath''s case (supra), the respondent/Corporation is at liberty to recover 50%

of the compensation amount so paid from the owner of the motor cycle owner/insurer

The Hon''ble Apex Court in the case of Khenyei supra, has held that 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. In the case of

RADHA. A. KAMATH supra, this Court has categorically held that in a composite negligence, if both the vehicles are involved, the appropriate

apportionment would be 50:50. The same being followed by the Division Bench of this Court in Thimmaiah''s case supra, arising out of the claim

made under Section 163A of the Act and the apportionment being made, owner/insurer of both the vehicles equally made liable at 50% each, it

would be appropriate and reasonable to apportion the liability on the owner/insurer of both the vehicles which has been rightly done by the

Tribunal. Thus, no irregularity or illegality is found in the impugned Judgment and Award.

It is also brought to the notice of this court that the appeal filed by the claimants seeking enhancement of the compensation challenging the very

same impugned Judgment and Award in MFA No. 9944/2011 was considered by this court and the same was dismissed on 20.1.2015 upholding

the Judgment ana Award passed by the Tribunal.

In such circumstances, no infirmity is found in the impugned Judgment and Order.

The appeal stands dismissed as devoid of merits.

The amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.