Court affirmed that contributory negligence can be apportioned among parties, and under composite negligence, claimants can seek full compensation from any tortfeasor.

JUDG

JUDGMENT :

C.M. JOSHI, J.

Heard the learned counsel appearing for appellants and respondent No.2-Insurance Company in these appeals.

2. Being aggrieved by the judgment and award passed in MVC No.338/2009 and MVC No.339/2009 by the learned Additional Senior Civil Judge and Additional MACT, Udupi, dated 28.01.2013, the petitioners in both the petitions have approached this Court in these appeals seeking enhancement of compensation.

3. The factual matrix of the case is that, on 31.12.2008, at 11.40 p.m., on NH-17, the deceased were travelling on a motor cycle bearing No.KA.19.H.6020 towards Mangalore, and near Karavali Junction at Udupi, a lorry bearing No. KA.22.A-5781 came from the back side of the motorcycle of the deceased and dashed against it, resulting in their death. Alleging that the accident was due to the negligence on the part of the driver of the lorry, the petitioners in both the petitions filed claim petitions before the Tribunal. The petitioners in MVC No. 338/2009 are the legal representatives of the deceased Dinesh Kotian, who was the rider of the motorcycle. The petitioners in MVC No.339/2009 are the legal representatives of the deceased Sridhar Bangera, who was the pillion rider of the motorcycle. They contended that the accident was due to the negligence on the part of the driver of the lorry and therefore, the owner and insurer of the lorry are liable to pay the compensation to them.

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4. Resisting both the claim petitions, the Insurance Company contended that the accident was due to the negligence on the part of the rider of the motorcycle also and that the compensation claimed is highly exorbitant, imaginary and untenable. It has also contended that the driver of the lorry was not having a valid driving licence etc., and as such, there is violation of the terms and conditions of the policy.

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5. During the pendency of the proceedings, the mother of the deceased Sridhar Bangera died and her name was deleted. Since the Insurance Company has taken up the contention that all the parties are not arrayed in the claim petition No.339/2009, the father of deceased Dinesh Kotian, one Dhuma Suvarna, was also arrayed as the respondent No.3, being the successor in title of the motorcycle involved in the accident.

6. The Tribunal after framing the appropriate issues, recorded the evidence PW1 and PW2 and an eyewitness was examined as PW3; and Exhibits P1 to P10 were marked in evidence. No evidence was led on behalf of the respondent- Insurance Company. The owner of the lorry was placed exparte before the Tribunal.

7. After hearing the arguments, the Tribunal came to the conclusion that there was contributory negligence on the part of the rider of the motorcycle to the extent of 25% and therefore, it deducted such 25% of the compensation amount awarded to the petitioners in both the claim petitions. The Tribunal has awarded compensation under different heads in both the petitions as below tables:

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IN MVC No.338/2009

IN MVC No.339/2009

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8. Being aggrieved by the said judgment, the petitioners in both the claim petitions have approached this Court in these appeals.

9. The learned counsel appear