(Prayer: This miscellaneous first appeal is filed under Section 173 (1) of the Motor Vehicles Act, praying to call for records and set aside the judgment and award dated 31.07.2018 passed by the court of the ii addl. senior civil judge and addl. m.a.c.t Dharwad in mvc no.440/2016 and etc.)

Cav Judgment:

1. This appeal has been preferred by Respondent No.2 in MVC No.440/2016, filed before the learned II Additional Senior Civil Judge and Additional MACT, Dharwad, seeking to set aside the judgment and award dated 31.07.2018 passed therein.

2. Learned Counsel for Appellant submitted that a short point i.e. the correctness of the order saddling Respondent No.2 with the liability of paying the entire compensation is involved for consideration in the appeal. In view of the same, the appeal is taken up for final disposal.

3. The notice of this appeal has been served on both respondents. Despite this, Respondent No.1, who was Claimant before the Tribunal, has remained absent. Respondent No.2, who was Respondent No.1 before the Tribunal, is represented by a counsel. However, his counsel was absent.

4. The Respondent No.1 herein, namely Sri Praveen, filed the petition in MVC No.440/2016 against Sri Nijaguni and Bharthi  Axa  General  Insurance  Company  Limited,  who  are Respondent No.2 and the Appellant respectively in this appeal, under Section 166 of the M.V. Act, claiming compensation of Rs. 8,00,000/- with interest for the injuries sustained by him in a road traffic accident that occurred on 21.10.2015.

5. The Tribunal tried the matter along with a connected case in MVC No.441/2016 and disposed of these petitions by a common judgment dated 31.07.2018. In that judgment, the Tribunal held that the Claimant in MVC No.440/2016 is entitled to compensation of Rs. 3,92,701/-, together with interest at the rate of 8% per annum from the date of the petition until the date of deposit of the award amount. Further, the Tribunal directed Respondent No.2, who is the Appellant herein, to deposit the entire award amount within 30 days from the date of the award.

6. In this appeal, Respondent No.2 has sought to set aside the impugned judgment and award primarily on the ground that the Tribunal’s order saddling them with the liability of satisfying the entire award is incorrect and erroneous. During the course of argument, learned Counsel for Respondent No.2 drew the attention of this Court to the relevant portions of the impugned judgment and submitted that while determining liability, the Tribunal held that the accident occurred due to equal contribution by the riders of both vehicles and apportioned their negligence at 50% each. Learned Counsel further pointed out that in MVC No.441/2016, the Tribunal directed Respondent Nos.2 and 3 namely the Appellant herein and Sri Devindragowda, the owner of the other motorcycle bearing No. KA-33-E-3588, to deposit the award amount in a 50:50 ratio, but in MVC No.440/2016 the Tribunal fastened the entire liability on them, which is erroneous and unjustifiable.

7. The factual matrix is that on 21.10.2015 at about 9:30 p.m., the claimant in MVC No. 440/2016 was traveling as a pillion rider on a motorcycle bearing number KA-25-EQ-4869. When the motorcycle reached near Shivalli on the Morab– Shivalli Road, it collided with another motorcycle bearing number KA-33-E-3588, resulting in the claimant sustaining injuries. It is further stated that the claimant in MVC No. 441/2016, who was standing by the side of the road at the place of the accident, also sustained injuries due to the said incident.

8. Upon appreciating the evidence and materials on record, the Tribunal concluded that the accident occurred due to the composite negligence of the riders of both motorcycles and accordingly apportioned their liability in equal proportion, attributing 50% each.

9. It is relevant to note that the petition in MVC No. 440/2016 has been filed only against the owner and insurer of the motorcycle bearing No.KA-25-EQ-4869. In contrast, the petition in MVC No.441/2016 has been filed not only against the owner and insurer of the motorcycle bearing No.KA-25-EQ-4869, but also against the owner of the motorcycle bearing No. KA-33- E-3588, namely Sri Devindragowda. In these circumstances, the Tribunal, in MVC No.441/2016 directed Respondent No. 2 and Sri Devindragowda to deposit the award amount in the ratio of 50:50, whereas in MVC No.440/2016 relying on the decision in Khenyei v. New India Assurance Company Limited and Others, reported in (2015) 9 SCC 273, the Tribunal directed Respondent No.2 to satisfy the award.

10. In Khenyei’s case referred supra, the Hon’ble Supreme Court of India considered inter se liability of the joint tort feasors and laid down modes available for settlement of the claim in such matters. In this case, the Hon’ble Supreme Court of India has explained the difference between ‘contributory negligence’ and ‘composite negligence’ in the following words,

                  “……In the case of contributory negligence, a person who has himself contributed to the accident 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 due to the outcome of combination of negligence of two or more other persons……”and proceeded to hold that,

                  “22.1 In the case of composite negligence, the 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 the 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 the 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.When the other joint tortfeasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided….”

11. The facts of the present case clearly establish that the accident in question resulted from the composite negligence of the riders of both vehicles involved in the collision. It is also evident that the Claimant in MVC No. 440/2016 bore no responsibility for the said incident. Hence, the Claimant was justified in maintaining the claim petition without impleading the owner of the other vehicle involved in the accident. Further, the Tribunal was also fully justified in directing Respondent No.2, the insurer of one of the tortfeasors, to satisfy the award in MVC No. 440/2016. As such, it is held that Respondent No.2 has failed to make out any ground warranting interference with the impugned judgment and award.

12.    In the result, this Court proceeds to pass the following:

ORDER

                  i)        The appeal is dismissed.

                  ii)       Consequently, the judgment and award dated 31.07.2018 passed in MVC No.440/2016 by learned II Additional Senior Civil Judge and Additional MACT, Dharwad is confirmed.

                  iii)       The trial court record and the amount in deposit, if any, shall be transmitted to the Tribunal for disbursement, forthwith.