The main legal point established in the judgment is that when an accident is solely due to the negligence of one party, apportioning negligence and liability to other parties is not warranted.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, to set aside the judgment and decree of the Claims Tribunal in M.C.O.P.No.2 of 2015, dated 27.06.2017 on the file of the Motor Accident Claims Tribunal, Special Subordinate Court, Dindigul allow the appeal with costs.)

1. The present appeal has been filed by the insurance company against the award of the Motor Accident Claims Tribunal, Dindigul in M.C.O.P.No.2 of 2015 primarily challenging the negligence and liability.

2. According to the injured claimant, she was travelling in an auto owned and driven by the 2nd respondent and insured with the 3rd  respondent. At that point of time, a Scorpio car owned by the 1st respondent came from the opposite direction and dashed against the auto in which the claimant sustained serious injuries. An F.I.R was registered in Crime No.161 of 2015 on the file of Taluk Police Station, Dindigul as against the driver of the car. She had further contended that she is a vegetable vendor aged 51 years and earning a sum of Rs.15,000/- per month. The claimant has prayed for a sum of Rs.10,00,000/- towards compensation.

3. According to the claimant, both the auto driver and the driver of the Scorpio car had driven the vehicle in a rash and negligent manner and both of them have contributed to the accident. The owner of the car, namely the 1st respondent had remained ex parte. The owner cum driver of the auto had filed a counter contending that the entire accident has happened only due to the rash and negligent driving on the part of the car driver and therefore, he is not liable to pay any compensation. In case, if the Court arrives at a finding that there is negligence on the part of the auto driver, the same being insured with the 3rd respondent, the 3rd respondent has to pay the compensation.

4. The 3rd respondent has filed a counter contending that the accident has happened only due to the rash and negligent driving on the part of the car driver and therefore, they are not liable to pay any compensation.

5. The tribunal after considering the oral and documentary evidence, arrived at a finding that the accident has happened only due to the rash and negligent driving on the part of the car driver. The tribunal further found that the driver of the auto was having only a LMV license without a badge and therefore, he has also contributed to the said accident. The tribunal ultimately concluded that 90% of the negligence is attributable to the car driver and 10% of the negligence is attributable to the auto driver in view of non-possession of badge. The tribunal relied upon a judgment of the Honourable Supreme Court reported in 2015 ACJ 1441 (Kehnyei Vs. New India Assurance Co., Ltd and Others) and held that even though the negligence is apportioned between the parties to the proceeding, the claimant can recover the whole of the compensation from anyone of the tortfeasors. Thereafter, the tortfeasor who had paid the compensation amount can recover the same from the other tortfeasor as per the apportionment in the order. Based upon the judgment of the Hon''ble Supreme Court, the tribunal held that the entire compensation has to be paid by the 3rd respondent insurance company who is the insurer of the auto. The tribunal further found that the claimant had sustained 30% disability and proceeded to award a sum of Rs.2,30,000/- towards compensation. The tribunal granted liberty to the insurance company to pay the amount and recover the same from the car owner and the auto owner proportionately as per the order. This award is under challenge in the present appeal.

6. The learned counsel appearing for the appellant / insurance company had contended that both the joint tortfeasors have been arrayed as parties to the claim petition. The tribunal has also apportioned the liability as 90% upon the car driver and 10% upon the auto driver. Once an apportionment of liability is made with regard to the negligence, the insurance compa