The above appeal is filed by the Insurer

challenging

the

judgment

and

award

dated

27.06.2014 passed in MVC No.212/2011 by the II

Additional MACT and Additional District and Sessions

Judge at Bidar sitting at Bhalki (hereinafter referred to

as the 'Tribunal').

2.

For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3.

The case of the Claimant is that on

27.12.2010, the deceased being the owner of the lorry

bearing No.AP-29/T-6154 was travelling in the said

lorry driven by its driver in normal speed. At that

time, a Tipper bearing No.MH-12/CH-3315 being

driven in a high speed, in rash and negligent manner,

hit the lorry causing the accident in question, wherein

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the deceased sustained fatal injuries and died on the

spot.

4.

Claiming compensation for the death of the

deceased, his wife, children and parents filed the

claim petition arraying the owner and Insurer of the

Tipper as Respondents.

The Claimant No.1 was

examined as P.W.1, Claimant No.4 was examined as

P.W.2 and Claimant No.5 was examined as P.W.5 and

Ex.P.1 to P.13 were marked in evidence. The official

of Respondent No.2-Insurer was examined as R.W.1.

However, no documents were marked in evidence.

5.

The Tribunal, upon an appreciation of the

oral and documentary evidence available on record,

awarded a compensation of `9,29,000/- together with

interest at the rate of 6% per annum and directed

Respondent No.2-Insurer to pay the compensation

awarded.

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6.

The Insurer has filed the above appeal

challenging the finding of the Tribunal on composite

negligence and contends that having regard to the

fact that the chargesheet has been filed against both

the vehicles, the negligence on the Insured vehicle

ought to be restricted to 50% and the Insurer be made

liable only to pay 50% of the compensation awarded.

In support of his contention, he relies on the judgment

of the Madras High Court in the case of The

The

The

The Branch

Branch

Branch

Branch

Manager, M/s. New India Assurance Company Limited v.

Manager, M/s. New India Assurance Company Limited v.

Manager, M/s. New India Assurance Company Limited v.

Manager, M/s. New India Assurance Company Limited v.

Thiru Rajaram and another

Thiru Rajaram and another

Thiru Rajaram and another

Thiru Rajaram and another¹¹¹¹.

.

.

.

7.

Per

contra,

learned

counsel

for

the

Claimants seeks to justify the finding of composite

negligence recorded by the Tribunal and relies on the

judgment of the Hon'ble Supreme Court in the case of

Khenyei v. New India Assurance Company Limited and

Khenyei v. New India Assurance Company Limited and

Khenyei v. New India Assurance Company Limited and

Khenyei v. New India Assurance Company Limited and

Others

Others

Others

Others²²²².

1 (2004) 8 SCC 553

2 (2015) 9 SCC 273

6

8.

Having regard to the contention put forth

by both the parties, the question that arises for

consideration is:

Whether the judgment and award passed by the

Tribunal is liable to be interfered with?

9.

The Tribunal, upon a re-appreciation of the

material

on

record,

noticing

the

contention

of

Respondent No.2-Insurer that the accident was on

account of composite negligence of the driver of the

lorry owned by the deceased, has recorded a finding

of fact that the entire evidence on record would prove

that the accident took place on due to the negligence

on the part of the driver of the Tipper. The Tribunal

has recorded the findings at paragraph No.12 of the

judgment as follows:

"17.Now coming to the aspect of

liability. it is needless to say that entire

facts and circumstance of the case would

7

disclose that accident in question was on

account of composite negligence of drivers

of both the vehicles, perhaps, there are no

material on record to believe that deceased

was driving the vehicle. Therefore, one

could not say that there was contributory

negligence. In view of the composite

negligence, liability of both the vehicles is

joint and several."

10. The Appellant has not been able to point

out as to how the s