Composite negligence cannot be determined without all joint tortfeasors being parties to the proceedings, necessitating remand for fresh consideration.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

This appeal is filed by the claimant challenging the judgment and award passed in MVC No.538/2013 on the file of the Motor Vehicle Accident Claims Tribunal-IX, Mudhol, dated 01.09.2015, seeking for enhancement of compensation as well as questioning deduction of 50% of compensation on the reason that the offending motorcycle bearing Reg.No.KA-48-E-9678 was not made as party.

2. It is the case of the claimant that on 04.12.2012 at about 06.15 p.m., the claimant was proceeding on the motorcycle bearing Reg.No.KA-48-J- 5492 as a pillion rider, from Girisagar to Mudhol near the land of one Basu Mane, when one of the said motorcycle was overtaking the Tractor No.KA-48-TA-1603, 1^st Trailer No.KA-48-T-9604 and 2^nd Trailer No.KA-48-T-8166, at that time, another motorcycle rider bearing Reg.No.KA-48-E- 9678 came from opposite direction in a rash and negligent manner and dashed to the motorcycle of the claimant. As a result, the claimant fell down and sustained injuries. Then, the driver of the Tractor and Trailer who was behind them, passed right wheel of 1^st Trailer No.KA-48-T-9604 over the left leg of the claimant. Thus, in this way, the claimant has sustained injuries all over the body. Therefore, filed a claim petition under Section 166 of the M.V ACT and Tribunal has granted compensation of Rs.8,74,700/- p.a. with interest at the rate of 6% p.a., holding composite negligence of 50% on the Tractor and two Trailers and the other 50% of composite negligence on the motorcycle bearing No.KA-48-E9678.

3. Learned counsel for appellant/claimant submitted since the claimant has not made as party of owner and insurer of the motorcycle No.KA-48-E-9678, the Tribunal erred in deducting 50% of compensation and awarded Rs.4,37,350/- putting liability on the Tractor and two Trailers. In support of his contention, he places reliance on decision of Hon’ble Supreme Court in the case of Khenyei V/s New India Assurance Company Limited and Others (2015) 9 SCC 273 and Division Bench judgment of this Courtin MFA No.101563/2017 and connected cases dated 22.08.2024 betweenBajaj Allianz General Insurance Company Ltd. V/s Smt. Haripriya and2016 ACJ 1 Kamlesh and others V/s Attar Singh and Others

4. Admittedly, in the claim petition, the claimant has not impleaded the owner and insurer of the motorcycle No.KA-48-E9678 for the best reasons known to him. The Tribunal held that both drivers of Tractor with two Trailers and the motorcycle No.KA-48-E-9678 are equally responsible for the accident. Accordingly, held that it is a composite negligence holding that the driver of Tractor with two Trailers are responsible for 50% and the rider of motorcycle No.KA-48-E-9678 is responsible to the extent of 50% towards the accident. Complaint, FIR, charge sheet and other materials have proved the facts that both drivers of Tractor with two Trailers and rider of the motorcycle No.KA-48-E-9678 are jointly responsible for the accident. When this being the fact, the claimant ought to have impleaded the owner and insurer of the motorcycle No.KA-48-E-9678 as a parties in the claim petition but has not made them as parties. It is submitted that during the pending proceedings before Tribunal, the insurer of the 1^st Trailer No.KA-48-T-9604 has filed an application under Order I Rule 10 of CPC for impleading the owner and insurer of the motorcycle No.KA-48-E-9678 but the Tribunal has rejected the said application. When the claimant has not made the owner of motorcycle No.KA-48-E-9678 as a party then, the 4^th respondent- insurance company has made an attempt to implead the owner