At, High Court of Karnataka Circuit Bench At Dharwad
By, THE HONOURABLE MR. JUSTICE KRISHNA S. DIXIT
For the Appearing Parties: G.N. Raichur, Sanjay S. Katageri, Vithal S. Teli, Advocates.
(Prayer: This MFA is filed under Section 173(1) of the M.V.Act, against the judgment and award Dated 27.04.2012, passed in MVC No.2789/2009 on the file of the Presiding Officer, FTC-IV, Member MACT, Belgaum, Awarding The Compensation of Rs.2,36,000/- with interest at the rate of 9% p.a. from the date of petition till the date of actual deposit.
This MFA is filed under Section 173(1) of the M.V.Act, 1988, against the judgment and award Dated 27.04.2012, passed in MVC No.2789/2009 on the file of the presiding officer, FTC-IV, & Member MACT, Belgaum, partly allowing the claim petition for compensation and seeking enhancement of compensation.)
1. I.A.No.1/2013 seeking condonation of delay in MFA No.24359/2012 is heard along with the main matter. The delay is condoned and the main matter is taken on merits.
The appeal by the Insurance Company and the appeal by the claimant together challenge the Judgment and award dated 27.04.2012 entered by the Fast Track Court - IV & MACT Belgaum, at Belgaum in MVC No.2789/2009 whereby the award is made for a compensating of Rs.2,36,000/- under various heads.
2. The Tribunal also apportioned the liability in the ratio of 40:60 i.e. the Appellant Insurance Company should bear 40% and the rider and owner of motor cycle bearing No.MH-09/AA-5264, should bear the rest.
3. It is the case of the Appellant that the accident occurred on 02.10.2005 at around 6:30 in the evening as a result of collision between two motor cycles bearing No.MH-09/A-9331 and MH-09/AA-5264. This accident was attributed to the rash and negligent driving of both the sides in the ratio of 40:60 and resultantly the pillion rider of MH-09/AC-9331 sustained grievous injuries.
4. The claimant preferred MVC No.2789/2009 initially only against the owner of bike bearing registration No.MH-09/AC-9331 which is insured with the Appellant- Insurance Company herein. Later he impleaded the owner and rider of another bike MH-09/AA-5264. He had also amended his pleadings. The owners of the vehicles and also the Insurance Company filed their Written Statements independently.
5. To prove his case the Claimant got examined himself as PW-1 and got marked Ex.P-1 to P24. The Claimant side also had examined two doctors i.e. PW-2 and PW-3 in whose deposition their medical documents came to be explained. Nobody from the side of the owner was examined nor from the side of the Insurance Company.
6. The MACT after perusing the pleadings and evidentiary material made the impugned Judgment and award fixing the liability on the Appellant Insurance Company to the extent of 40% and the owner and rider of the bike bearing No.MH-09/AA-5264 to the remaining extent of 60%.
7. The learned counsel for the Appellant Insurance company vehemently submits that the MACT is not justified in apportioning the contributory negligence and consequential liability in the ratio of 40:60. The owner of the vehicle who too is represented by an able counsel submits that the contributory negligence on the part of the insured owner of the vehicle was above 50% and therefore, the MACT is not justified in adopting the ratio of 40:60 and he further submits that this ratio should have been at least 50:50 if not more.
8. I have carefully considered this aspect of the finding of the MACT by looking into the LCR. The Written Statement filed by the opposing parties did not say as to the extent of liability since habitually they deny entire liability. Therefore, there is a larger onus on the part of the MACT in adjudging the extent of the liability on the basis of the evidentiary material on record and also by drawing appropriate inferences under Section 114 of the Indian Evidence Act, 1872 .
9. The MACT in arriving at this apportionment ratio has considered numerous documents including the Criminal Court's Judgment and order of conviction and sentence dated 22.02.2008 where under the respondent No.3 namely Annappa Vithoba Hadagal in the appeal of the Insurance company, was found guilty.
10. I have also carefully considered the evidentiary material available on record in abundance. The adjudging of contributory negligence is a difficult task as held by the English Courts. However that does not relieve the court from the burden of adjudging it, which exercise it has to do on guess work keeping in view the entire facts and circumstances of the case as emerging from the record. No specific principle has been shown to have been violated by the Tribunal in its exercise of apportionment of contributory negligence and consequential liability. Therefore, I am disinclined to upset the finding of the MACT.
11. The counsel for the claimant contends that the MACT was not justified in looking into the findings of the Criminal Court in a parallel proceeding resulting into conviction and sentence of the negligent driver of the vehicle in question. He reads from the provisions of Section 42 and 43 of the Indian Evidence Act, 1872 to buttress his point that in Civil adjudication, the judgments rendered on the Criminal side are not of much assistance, if not relevant.
12. However, the records reveal that though the said order of conviction and sentence is marked as Ex.P - 13 and though the same is adverted to by the learned counsel for the company in the Court below, the MACT has not grounded its finding as to liability and it's apportionment on this at all, since there is other abundant material which the MACT has duly adverted to.
13. The learned counsel for the claimant contends that the issue of contributory negligence between the joint tortfeasors does not bother much, because any standard book relating to law of torts such as the one by Winfield and Jolowicz states that the contributory negligence will impose the liability on the joint tortfeasors jointly and severally and therefore, irrespective of the ratio of apportionment of liability, the Claimant is entitled to proceed against any of or all the joint tortfeasors at his sweet will.
14. The counsel banks upon a Judgment in the case of Khenyei Vs. New India Assurance Company and others reported in 2015 ACJ 1441 in support of his submission, wherein the Apex Court has laid down the principle that the liability of the joint tortfeasors is joint and several regardless of the extent of contributory negligence attributable to them individually and therefore, the Insurance Company is not at all an injured person in law in as much as it is open to the Company to proceed against the joint tortfeasors, seeking contribution from them.
15. What should happen to one of the joint tortfeasors who satisfies the liability under the judgment and award is not a question which this Court is called upon to answer.
16. The counsel for Claimants in MFA No.2439/2010 submits that the values operated by the MACT do not reflect the true figures and that this has resulted into awarding of lesser compensation when it is the duty of the MACT to award just and proper compensation regardless of the pleadings of the parties.
17. I have also carefully considered the factors operated
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by the MACT. The counsel for the Insurance Company stoutly opposes the counsel for the Claimants and states that what has been awarded by the MACT as compensation is already on the higher side and that there is absolutely no warrant for indulgence of this Court. I am inclined to accept the submissions of the counsel for the Insurance company. Except the above said points no other question is argued before me and therefore I pass the following: ORDER Both the appeals are dismissed. The impugned Judgment and the award passed on 27.04.2012 in MVC No.2789/2009 by the Fast Track Court - IV & MACT, Belgaum are affirmed. The registry shall return the deposit amount made by the Insurance Company at the time of filing the Appeal. Costs made easy.