In cases of joint tortfeasors, apportionment of negligence cannot be assessed without all parties present, as each can be held liable for entire damages.

JUDGMENT :

This appeal is by the insurer being aggrieved by the Judgment and award dated 21.07.2022 passed in MVC No.4007/2020 on the file of Chief Judge, Small Causes Court and Principal MACT, Bengaluru.

2. Though the matter is listed for admission, with the consent of both sides, it is taken up for final disposal.

3. The parties are referred to as per their rankings before the Tribunal.

4. Brief facts of the case are that:

On 27.10.2019 at about 10.40 a.m. deceased Rajashekariah K.S., was travelling in a car bearing registration No.KA-06-N-3698 on Bengaluru to Tumkuru NH-4 road, near 8^th mile Peenya flyover, the driver of a Canter lorry bearing registration No.KA-41-A-2740 parked the said vehicle over the flyover without signal or indication light and without taking any precaution. As a result, the car hit the said lorry, due to impact Rajashekariah K.S., sustained grievous injuries and while undergoing treatment he succumbed to the injuries.

5. The claimants being his wife and children contended that the deceased Rajashekariah K.S., was aged about 65 years. He was in real estate business and earning Rs.25,000/- per month. Claimants were dependant upon his earnings. With these reasons, prayed to award compensation of Rs.30,00,000/-.

6. Respondent No.1 was the owner and respondent No.2, was the insurer of the offending lorry bearing registration No.KA-41-A-2740.

7. Respondent Nos.1 and 2 filed their written statements denying the averments of the claim petition. Respondent No.2 in addition denied its liability to pay the compensation and it also contended that accident occurred due to negligence of driver of the car. It further contended that its liability is restricted to terms and conditions of policy of insurance. With these reasons prayed to dismiss the claim petition.

8. Tribunal framed necessary issues.

9. Claimants to substantiate their case examined two witnesses as PW1 and PW2 and marked Exhibits P1 to P16. Respondent examined one witness as RW1 and marked Exhibits R1 and R2.

10. Tribunal on hearing both the parties and on appreciation of materials available on record held that accident occurred due to contributory negligence of driver of the lorry as well as the car in the ratio of 80:20. The Tribunal assessed age, income, multiplier and awarded following amount of compensation.

11. Tribunal deducted 20% of the compensation to be payable by the driver of the car and directed respondent to pay 80% of the said amount.

12. Claimants have not challenged the said findings. However, insurer challenged the said findings.

13. Learned counsel for the appellant/insurer vehemently contended that the accident occurred solely due to the negligence of the car driver. There was no negligence on the part of the lorry driver, as the lorry had been parked on the side of the road. The accident occurred during daylight, between 10:30 and 10:40 a.m. Hence, there was no question of switching on any indication light or otherwise signalling that the vehicle was under repair and parked. Although sufficient space was available on road to the right side of the lorry, but the car driver, by his negligent driving, hit the rear side of the lorry, resulting in the accident. It was further contended that the lorry driver was not at fault in any manner. However, the police unfortunately charge-sheeted both the lorry driver and the car driver in connection with the said accident. Considering the facts and circumstances of the case, it is evident that the entire negligence was of the car driver, and therefore, the Tribunal ought to have directed the car driver to bear the entire liability for payment of compensation.

14. Learn