(Prayer: This M.F.A. is filed under Section 173(1) of M.V. Act against the Judgment and Award Dated 30.04.2012 passed in MVC No.210/2012 on the file of the Presiding Officer, Fast Track Court-I, Member, Additional Mact, Mysore, awarding a Compensation of Rs.4,36,500/- with Interest @ 6% p.a. from the date of Petition till Realization.)
1. This appeal is filed by the insurer challenging the Judgment and award passed by the Motor Accident Claims Tribunal, Mysore, [the Tribunal , for short] in MVC No.210/2012.
2. Briefly stated the facts are:
That the claimants, parents of the deceased Mahendra instituted the petition before the Tribunal claiming compensation for the death of their son in the motor vehicle accident which occurred on 8.2.2012 at about 10.10 p.m. while the deceased was riding the motorcycle bearing registration No.KA-45/J-4984, alleging actionable negligence of the driver of lorry bearing registration No.KA-19/B-9840 (offending vehicle) for parking on the main road in a negligent manner without any sign or indicator. In response to the notice issued by the Tribunal, the registered owner of the offending vehicle remained absent and the appellant, insurer of the offending vehicle entered appearance and resisted the claim. The Tribunal after analyzing the evidence on record, awarded total compensation of Rs.4,36,500/- with interest at 6% p.a. from the date of petition till realisation fastening the liability on the appellant- insurer. Being aggrieved, the appellant-insurer is in appeal challenging the liability.
3. The learned counsel appearing for the appellant assailing the impugned Judgment and award would vehemently contend that the Tribunal grossly erred in entertaining the claim under Section 163-A of the Motor Vehicles Act, 1988, ('Act' for short), ignoring the negligence on the part of the deceased. The accident occurred due to the own negligence of the deceased, dashing against the hind side of the parked vehicle (offending vehicle). The charge sheet was filed by the police authorities against the drivers of both the vehicles, as such, contributory negligence apparent on the face of the record could have been properly appreciated by the Tribunal in fastening the liability. It is submitted that no tort-feasor can file the claim for compensation for self negligence. Section 163-A cannot be departed from the said principle. Learned counsel placing reliance on the Judgment in KHENYEI vs. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS reported in 2015 ACJ 1441, would contend that the subtle difference between the contributory negligence and composite negligence was not considered by the Tribunal in the right perspective. The case on hand was of contributory negligence in much as the negligence contributed by the deceased for causing the accident to the parked vehicle. The Tribunal misdirected itself in proceeding that the cause of the accident was composite negligence. Thus, it is emphasized that the factum of contributory negligence, if apportioned, the compensation awarded by the Tribunal to the extent of contributory negligence of the deceased deserves to be reduced. Yet another argument advanced was that the owner/insurer of the other vehicle, motorcycle bearing No KA-45/J-4984 not being impleaded, no entire liability could be saddled on the appellant-insurer.
4. Per contra, learned counsel appearing for the respondent justifying the impugned Judgment and award would contend that the Tribunal after extensively analyzing the evidence on record, awarded the just compensation fastening the liability on the appellant- insurer which do not warrant any interference by this Court. It was contended that Section 163-A of the Act being a special provision based on no fault liability and more particularly, two vehicles being involved in the accident, no negligence requires to be proved by the claimants. It was contended that non-impleadment of the owner/insurer of the motorcycle would not obliterate the right of the claimants to make a claim under Section 163 A of the Act.
5. Heard the learned counsel for the parties and perused the material on record.
6. The points that arise for consideration in this appeal are:
i) whether the Tribunal was justified in fastening the liability on the appellant- insurer to satisfy the award in the absence of impleadment of the owner/insurer of the other vehicle involved in the accident under Section 163-A of the Act ? ii) whether the Tribunal was justified in net reducing the compensation to the extent of contributory negligence on the part of the deceased for causing the accident ?
7. The factum of accident resulting in the death of the victim is not in dispute. The primary contention of the Insurance company is in much as the contributory negligence on the part of the deceased. To examine this aspect, it is first essential to analyse the concept of contributory negligence. Contributory negligence is nothing but lack of reasonable care by a plaintiff for his own safety. With the recognition of negligence as a ground of liability, a practice grew up of taking a defence of alleging negligence on the part of the plaintiff. Over the years, the doctrine of contributory negligence was subjected to judicial scrutiny. It is beneficial to refer to the judgment of the Hon ble Apex Court in the case of PRAMODKUMAR RASIKBHAI JHAVERI vs. KARMASEY KUNVARGI TAK AND OTHERS reported in 2002 ACJ 1720wherein the Hon ble Apex Court has relied on the decision of Swadling -v- Cooper reported in 1931 AC 1, where it has been held that mere failure to avoid collision by taking some extraordinary precaution does not itself constitute negligence; the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man one would fairly be expected to take in the circumstances. Taking note of this proposition, the Hon ble Apex Court in Pramod Kumar case (supra) has held thus:
11. It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as a result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that driver of the car was trying to overtake a truck which was going ahead of the car. The appellant car driver had also pleaded that the truck driven by the respondent No.2 was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 ft. and there were mud shoulders on either side having a width of 3 ft. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a 3 ft. width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the respondent No.2 almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant s failure to swerve to the extreme left to the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the respondent No.2, the truck driver had no case that the appellant was negligent.
8. A full bench of this court in NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION vs. SMT. VIJAYALAKSHMI AND OTHERS reported in ILR 2011(4) KAR 4845has held thus:
14. The contributory negligence has two facets. One in which two or more vehicles and drivers are involved in the accident. It is their driving which is the cause of accident. In such a case the question is who drove the vehicle in a rash and negligent manner. If all of them drove the vehicle in a negligent manner, who contributed to what extent in causing the accident. It is on the basis of such factual finding apportioning the blameworthiness on the drivers, the contributory negligence has to be assessed. To the extent of the percentage of negligence attributed to each driver, the owner of the vehicle and consequently if the vehicle is insured, the insurer would be liable to pay the compensation. If the driver himself is claiming compensation as third party, if his negligent act is also the cause of the accident, then the compensation payable to him would get reduced to the extent of the percentage of negligence attributed to him.
9. Section 122 of the Act prohibits a person incharge of a motor vehicle from causing or allowing the vehicle or any trailer to be abandoned or remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.
10. In the case of Kumari Jyothi -v- Mohd. Usman Ali reported in ILR 2002 KAR 897, the Division Bench of this court has held that where the vehicle was parked without any sign or indicator to warn other road users, and particularly where the place was dark, the negligence is on the driver of the parked vehicle and not the driver of any other vehicle which has dashed to such parked vehicle. Thus, it is clear that a finding on contributory negligence is based on factual investigation whether the deceased contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case.
11. In this background of the settled legal position, it is manifestly clear that contributory negligence is different from composite negligence but the factum of contributory negligence depends on the factual investigation of the case. A direct and corroborative evidence is sine qua nonto establish the factum of contributory negligence. Apparently no specific plea was taken by the appellant in the statement of objections, in much as contributory negligence, the defence was general in nature, no evidence was let in by the appellant-insurer to show that the deceased was negligent or he has not taken reasonable care to avoid the accident. It is settled legal position that the question of contributory negligence is to be decided on the same principle on which the defendants negligence is decided. The learned counsel appearing for the appellant placing much emphasis on the charge sheet filed by the police authorities against the deceased as well as driver of the parked vehicle would contend that negligence on the part of the deceased was well established, no further evidence was required. Filing of the charge sheet by the police authorities against the deceased would not be suffice to establish the contributory negligence on the part of the deceased, particularly while considering the claim under Section 163-A of the Act. Parking of the vehicle in a main road, in the night hours, without any sign or indicator to warn other vehicles plying on the road establishes the negligence on the driver of the parked vehicle. It is well settled position of law by now that the criminal proceedings initiated against a driver or the outcome of the criminal proceedings would not be binding on the Civil Court or the Tribunal, more specifically, while awarding compensation under the provisions of the Act. This view is further fortified by the judgment of the Hon'ble Supreme Court in Sinitha s case (Supra). Their Lordships have categorically held that the Police documents cannot constitute as proof of negligence at the hands of the claimant and even if he was responsible for the accident, in the absence of concrete evidence, the factual jumble would remain an unresolved tangle. It is well established principle that in a claim raised under Section 163-A of the Act, claimants have neither to plead nor to establish negligence. The burden shouldered on the appellant - insurer was not discharged to establish the factum of negligence on the part of the claimant. The insurer having failed to make any efforts to establish the contributory negligence muchless the extent of contributory negligence on the part of the deceased, this court in appeal proceedings cannot assess the same. It transpires that the insurer has not stepped into the witness box, no arguments were advanced by the insurer on this point before the Tribunal. The focus of the insurer was to escape the liability on the premise that the claimants have not impleaded the owner/insurer of the motorcycle. Addressing on this point, the Tribunal held that non-impleadment of the owner/insurer of the motorcycle would not preclude the claimants from claiming compensation under Section 163-A of the Act, which is justifiable.
12. As regards the maintainability of a claim on no fault basis under Section 163-A of the Act, it would be apposite to refer to the Division Bench judgment in Appaji (since deceased) and another -v- M.Krishna and another reported in 2004 ACJ 1289 wherein it is observed that in cases were the accident involves two vehicles one accusing the other of negligence, it would be open to maintain a claim on no fault basis under section 163-A of the Act, that is because such a claim is permissible no matter the driver or the owner of the other vehicle involved in the accident may dispute negligence in the matter. This Judgment is relied on by yet another Division Bench of this court in the case of National Insurance Company Limited -v- Honnappa and others reported in ILR 2008 KAR 959. It is held thus:
In the instant case, it is not in dispute that, scooter bearing No.MEG 1913 and motor cycle bearing registration No.MAW 1010, were involved. The accident as such, involving the said two vehicles has not been disputed. The petitioner has sustained the injuries on account of the accident and is the victim. Jurisdictional Police had registered the case for rash and negligent driving against the rider of the motor cycle MAW 1010, which is evident from Ex.Pl, the F.I.R. in Crime No. 1/2000 of Mangalore East Police Station, Ex.P.3 the particulars furnished under Sec. 160 of the Act regarding the accident particulars, Ex.P5 the charge sheet filed against the rider of the motor cycle Thus, it is clear that the said two motor vehicles were involved in the accident and on account of the accident, the claimant sustained injuries. In such a situation, the claim petition under Sec. 163-A of the Act is permissible, no matter, the driver or the owner of the vehicle involved in the accident, may dispute his negligence in the matter. In view of sub-See. (2) of Sec. 163-A, the claimant need not plead or establish that the permanent disablement in respect of which the claim has been made, was due to wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or of any other person.
13. In the case of THIMMAIAH vs. THE MANAGING DIRECTOR, KSRTC in MFA No.3626/2013 [DD-14.7.2015] the Division Bench of this Court while considering the claim under Section 163-A of the Act, has observed thus:
In view of the judgment of the Apex Court in Khenyei s case (supra), the claimant can recover the entire compensation from any of the joint tort feasors. In the case on hand, since the owner/Insurer of the motor cycle on which the deceased was traveling 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 bearing registration No.KA-50/K-2986.
14. It is well settled legal position that Section 163-A of the Act is a benevolent provision inserted by Act 54/1994 w.e.f 14.11.1994 based on non-fault liability basis. In the light of the judgments referred to above, it is manifestly clear that when two motor vehicles are involved in the accident, the claimant sustained injuries, irrespective of the negligence or default of the owner/driver of the vehicle or vehicles concerned or of any other person, claim under Section 163-A is maintainable. In view of the law rendered by the Division Bench of this Court, in Appaji s case (supra), it is crystal clear that non-impleadment of the owner or driver of the other vehicle involved in the accident is not fatal to claim compensation under Section 163-A of the Act. In view of the same, the grounds urged by the Insurance company do not lend any credence.
Thus, the appeal stands dismissed as devoid of merits.
Amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.