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IN THE HIGH COURT OF

DHARWAD BENCH

DATED THIS THE 10 TH DAY OF APRIL 2015

BEFORE

THE HON’BLE MR. JUSTICE PRADEEP D. WAINGANKAR

M.F.A. NO.13908/2007 (MV)

BETWEEN:

BRANCH MANAGER UNITED INSURANCE CO LTD., MOKTALI BUILDING OPP: KSRTC BUS STAND, . NOW REPRESENTED BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO LTD., DIVISIONAL OFFICE # 2 ENKAY COMPLEX, KESHWAPUR HUBLI – 580 023. ... APPELLANT (BY SRI. N.R. KUPPELLUR, ADV.,)

AND:

1. SMT. JAYAMMA W/O. BEERAPPA WALIKAR NOW AGED ABOUT 34 YEARS OCC: HOUSEHOLD WORK.

2. PARASHURAM S/O. BEERAPPA WALIKAR

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NOW AGED ABOUT 21 YEARS OCC: STUDENT.

3. KUMARI GEETA D/O. BEERAPPA WALIKAR NOW AGED ABOUT 19 YEARS OCC: HOUSEHOLD WORK.

4. KUMARI GIRIJA D/O. BEERAPPA WALIKAR AGED ABOUT 15 YEARS OCC: HOUSEHOLD WORK.

THE 4 TH RESPONDENT HEREIN SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN/MOTHER THE 1 ST RESPONDENT HEREIN.

5. SMT. SAVITRAVVA W/O. GUDDAPPA WALIKAR NOW AGED ABOUT 72 YEARS OCC: HOUSEHOLD WORK.

ALL R/O. TALUK & DIST HAVERI.

6. CHANNAPPA S/O. HANAMANTHAPPA BARKI MAJOR, OCC: OWNER OF VEHICLE BEARING NO.KA-27/K-2037 (DECEAED) BY HIS LRs.

6(a) SMT. RATNAVVA W/O. CHANNAPPA BARKI NOW AGED ABOUT 37 YEARS OCC: HOUSEHOLD WORK.

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6(b) KUM. SUJATHA D/O. CHANNAPPA BARKI NOW AGED ABOUT 15 YEARS OCC: STUDENT.

6(c) NAGARAJ S/O. CHANNAPPA BARKI NOW AGED ABOUT 13 YEARS OCC: STUDENT.

6(d) KUMARI SHILPA D/O. CHANNAPPA BARKI NOW AGED ABOUT 9 YEARS OCC: STUDENT.

6(e) KUMARI JYOTI D/O. CHANNAPPA BARKI NOW AGED ABOUT 7 YEARS OCC: STUDENT

RESPONDENTS No.6(b) TO 6(e) SINCE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN/MOTHER THE RESPONDENT No.6(a) HEREIN

ALL R/O. KANCHARAGATTI TQ & DIST. HAVERI.

7. SMT. MEENAXI @ MEENAXAMMA W/O. NAGANAGOUDA PATIL NOW AGED ABOUT 27 YEARS OWNER OF VEHICLE BEARING NO.KA-29/2522 R/O. PETBAN ONI, LAXMESHWAR TQ. SHIRAHATTI, DIST. GADAG. …RESPONDENTS (BY SRI. S.R. HEGDE, ADV., FOR R1 TO R5; SRI. N.P. VIVEKMEHTA, ADV., FOR R7; R4 – SERVED)

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THIS MFA IS FILED U/S. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.06.2007 PASSED IN MVC No.700/2005 ON THE FILE OF THE DIST. JUDGE AND MACT, HAVERI, AWARDING A COMPENSATION OF RS.3,72,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

J U D G M E N T

In MVC No.700/2005, the District Judge and MACT,

Haveri, awarded Rs.3,72,000/- as compensation on account of the death of deceased–Beerappa Walikar by judgment and award dated 30.06.2007. Aggrieved by the judgment and award, this appeal is preferred by United India Insurance

Company Ltd.,-the insurer of the motorcycle wherein the deceased was proceeding as pillion rider at the time of the accident.

2. On 24.12.2004, at about 9.30 hours, deceased-

Beerappa Walikar, was returning after attending a funeral of

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one Nimbanna Wadnikoppa as a pillion rider on the motorcycle bearing registration No.KA-27/K.2037 insured by the appellant. When the motorcycle reached at Guttal on

Neglur-Guttal road, a Mahindra Maxi Cab came from opposite direction due to which there was collusion between the motorcycle and the Maxi Cab, as a result of which the rider of the motorcycle as well as deceased-Beerappa Walikar, pillion rider died on the spot.

3. The wife and children of deceased-Beerappa

Walikar filed a claim petition under Section 166 of the M.V

Act in MVC No.700/2005 against the owner and insurer of the motorcycle. It was opposed by the insurer of the motorcycle on the ground that the accident occurred on account of the negligence of the driver of the Maxi Cab and since the Maxi Cab was not insured, the claimants filed claim petition against the owner and insurer of the motorcycle.

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On this ground and others, the Insurance Company sought for dismissal of the claim petition.

4. The claim petition came up for consideration before the Tribunal, before whom the wife of deceased was examined as PW.1 apart from examining two other witnesses as PWs.2 and 3. Ex.P-1 to P-8 were marked. On behalf of the Insurance Company, one M.H. Mallikarjun was examined as RW.1. The learned District Judge and Member, MACT, on appreciation of the evidence, recorded a finding that the accident and the resultant death of deceased-Beerappa

Walikar was on account of composite negligence of the rider of the motorcycle and the driver of the Maxi Cab. Since the owner and insurer of the Maxi Cab were not made parties by the claimants, the Tribunal awarded a total compensation

Rs.3,72,000/- to the claimants from the owner and insurer of the motorcycle jointly and severally.

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5. Aggrieved by the liability fastened on the appellant-Insurance company, this appeal is preferred.

6. I have heard the learned counsel appearing for the parties. Perused the records and the judgment and award passed by the Court below.

7. At the outset, it has to be stated that the appellant-Insurance Company has not seriously questioned the quantum of compensation determined by the Tribunal.

Even otherwise, evidence has been produced to show that the claimants are entitled for a total compensation of

Rs.3,72,000/- on account of the death of deceased-Beerappa

Walikar. Coming to the liability fastened on the appellant-

Insurance Company which has been challenged in this appeal, it is borne out from Ex.P1-the complaint, Ex.P2-F.I.R. and

Ex.P3-the charge-sheet that in connection with the said accident, the charge sheet was filed against the driver of the

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Maxi Cab that on account of rash and negligent driving of the

Maxi Cab by its driver-Manjunath, the accident occurred.

The case of the Insurance Company is that the accident occurred purely due to the negligence on the part of the driver of the Maxi Cab. Even then, the claimants filed the claim petition against the owner and insurer of the motorcycle which came to be partly allowed. But, one should not forget to remember that it was a case of head on collusion between the motorcycle and the Maxi Cab. Since the deceased was traveling as a pillion rider on a motorcycle, for him it was a case of composite negligence of the rider of the motorcycle and the driver of the Maxi Cab. In such an event, when the owner and insurer of the Maxi Cab were not made as parties to the claim petition by the claimants, nothing prevented either the owner or insurer of the motorcycle from filing an application to implead the owner and insurer of the

Maxi Cab as necessary parties to the claim petition. The

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owner and insurer of the motorcycle having not taken steps to implead the owner and insurer of the Maxi Cab as parties to the claim petition, it is not open for them to say that the petition against the owner and insurer of motorcycle is not maintainable since there was no negligence on the part of the rider of the motorcycle and that the accident was purely due to the negligence of the driver of the Maxi Cab.

8. It has been held in 2005 ACJ 831 that where injury is caused by wrongful act of two parties, the plaintiff is not bound to find out whom he can sue. He is entitled to sue all or any of the negligent persons.

9. In the decision reported in 2005 ACJ 588, it has held as under:

“Negligence-Composite negligence-Joint tortfeasors- Liability of-Collusion between a jeep and scooter coming from opposite directions due to negligence of both drivers

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and pillion rider on scooter sustained injuries-No contributory negligence can be attributed to the injured- Whether the pillion rider has a right to proceed against any or both the joint tortfeasors and can recover damages either from both or any of them-Held: Yes”

10. For the reasons stated above and in view of the law laid down in the above decisions, it has to be held that there is no merit in the appeal filed by the appellant-

Insurance Company. Hence, I pass the following

ORDER

The appeal is dismissed.

The amount in deposit by the appellant-insurance company shall be transmitted to the Tribunal.

Send back the records to the Tribunal.

Sd/- JUDGE

PMR