- 1 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.103794 OF 2015 (MV-I) BETWEEN: SMT. BHAGAWWA W/O. SUNIL NAIK, AGE: 29 YEARS, OCC: AGRICULTURE COOLIE, NOW NIL, R/O: SAI NAGAR, MUDHOL, TQ: MUDHOL. …APPELLANT (BY SRI HARISH S.MAIGUR, ADVOCATE) AND: 1. BASAPPA S/O. BASALINGAPPA DASHYAL, AGE: 72 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: MAREGUDDI, TQ: JAMAKHANDI. 2. THE DIVISIONAL MANAGER, TATA AIG GENERAL INSURANCE COMPANY LIMITED, PENINSULA CORPORATE PARK, PARIMAL TOWER, 9TH FLOOR, GANAPATRAO KADAM MARG, LOWER PAREL, MUMBAI-400 013. (MAHARASHTRA STATE) 3. SADASHIV S/O. DUNDAPPA MUGATI, AGE: 47 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: SAIDAPUR GALLI, MUDHOL. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 4. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, OPPOSITE SIDDESHWAR TEMPLE, VIJAYAPURA. 5. KALLAPPA S/O. HANAMANTH RANGANNAVAR, AGE: 47 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: HUNASHIKATTI, TQ: JAMAKHANDI. 6. THE DIVISIONAL MANAGER, IFFCO TOKIO INSURANCE COMPANY LIMITED, HEAD CUSTOMER SERVICE CENTER, KSCMF BUILDING, 3RD FLOOR, 3RD BLOCK, 8TH CROSS, CUNNINGHAM ROAD, BENGALURU-560 052. …RESPONDENTS (BY SRI G.N. RAICHUR, ADVOCATE FOR R2 (THROUGH V/C); SRI. N.R. KUPPELUR, ADVOCATE FOR R4; SRI. M.Y. KATAGI, ADVOCATE FOR R6; NOTICE TO R1 AND R5 ARE SERVED; R3-NOTICE HELD SUFFICIENT) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PLEASED TO MODIFY 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, IN THE INTEREST OF JUSTICE AND EQUITY. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 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, 1st Trailer No.KA-48-T-9604 and 2nd 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 - 4 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 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 1st 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 - 5 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 Bench judgment of this Court in MFA No.101563/2017 and connected cases dated 22.08.2024 between Bajaj Allianz General Insurance Company Ltd. V/s Smt. Haripriya and 2016 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 - 6 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 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 1st 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 4th respondent- insurance company has made an attempt to implead the owner and insurer of the motorcycle No.KA-48-E-9678. But unfortunately, said application was dismissed. 5. It is argued by the counsel for the appellant that the claimant is entitled to compensation either from the owner of the Tractor and Trailer or from the motorcycle No.KA-48-E-9678 or from both by referring the judgment of Hon’ble Supreme Court in the case of Khenyei V/s New India Assurance Company Limited and Others(supra). - 7 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 6. In the case of Khenyei V/s New India Assurance Company Limited and Others (supra) at paragraph No.22.4, it is directed as follows: “22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.” 7. Therefore, where there are two joint tortfeasors, and one joint tortfeasor is made as party and other is not made as party, then the Court of the Tribunal shall not determine composite negligence in the absence of other joint tortfeasors. Therefore, if the insurer of the Tractor and Trailer is directed to pay entire compensation and for recovery of the remaining 50% of the compensation from the owner and insurer of the motorcycle No.KA-48-E-9678, the owner of motorcycle No.KA-48-E-9678 requires to be made as party to the proceedings. However, the owner of the motorcycle - 8 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 bearing No.KA-48-E-9676 is not made party in the proceedings. If the owner of motorcycle No.KA-48-E-9678 is impleaded as a party, then the argument of the counsel for the appellant could have been accepted. However, the owner and insurer of motorcycle No.KA-48-E-9678 are not made as a party. Therefore, even if the owner and insurer of the Tractor are directed to pay the entire compensation amount, but for recovery of the remaining 50% amount, the owner and insurer of motorcycle No.KA-48-E-9678 must be a party to the proceedings. Therefore, they cannot proceed against the owner and insurer of motorcycle No.KA-48-E-9678 as per dictum of Hon’ble Supreme Court in the case of Khenyei V/s New India Assurance Company Limited and Others (supra). As stated above, in the absence of impleadment of other joint tortfeasors, the composite negligence cannot be attributed. Therefore, this Court is of the opinion that it is just and proper to remand the case to the Tribunal for fresh consideration in accordance with law by reserving liberty to the claimant to implead the owner and insurer of - 9 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 the motorcycle No.KA-48-E-9678. Therefore, the judgment and award dated 01.09.2015 on the file of the Motor Vehicle Accident Claims Tribunal-IX, Mudhol is liable to be set aside and remanded to the Tribunal for fresh consideration. The claimant is reserved liberty to make an application for impleadment of the owner and insurer of the motorcycle No.KA-48-E-9678 and the Tribunal shall consider the same in accordance with law. 8. Hence, I proceed to pass the following: ORDER i. The appeal is allowed. ii. The judgment and award dated 01.09.2015 passed in MVC No.538/2013 on the file of Motor Vehicle Accident Claims Tribunal-IX, Mudhol is hereby set aside. iii. The matter is remanded to the Tribunal for fresh consideration. iv. All the contentions of the parties are left open. - 10 - NC: 2025:KHC-D:1338 MFA No. 103794 of 2015 v. Both the parties are given liberty to lead further additional evidence if they are so advised either oral, documentary or both. vi. Both the parties in this appeal shall appear before the Tribunal on 17.02.2025 without expecting any notice from the Tribunal. vii. The claimant is reserved liberty to file application for impleading owner and insurer of the motorcycle No.KA-48-E- 9678. The Tribunal is directed to dispose off the petition within a period of six months from 17.02.2025. viii. Send back the trial Court records along with a copy of this judgment to the tribunal Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 38