- 1 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 7352 OF 2018 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 7351 OF 2018 (MV-I) MISCELLANEOUS FIRST APPEAL NO. 7354 OF 2018 (MV-I) MISCELLANEOUS FIRST APPEAL NO. 7355 OF 2018 (MV-I) IN MFA No. 7352/2018 BETWEEN: RIMHSA FALAK, D/O MOHAMMED IRSHAD AHMED, AGED ABOUT 9 YEARS, R/AT HEGGERE, SIDDARTHANAGAR, TUMKUR-572 107. PETITIONER IS MINOR, REP. BY HER GRAND FATHER AND NATURAL GUARDIAN SYED PACHA. …APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND: 1. THE ORIENTAL INSU., CO., LTD., NO.44/45, RESIDENCY CROSS ROAD, LEO SHOPPING COMPLEX, BANGALORE-25. 2. MR. S H MAYYADI, PWD CONTRACTOR, SUBHAS ROAD, Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER KOPPA-577 126. …RESPONDENTS (BY SRI BHUVAN, ADVOCATE FOR SRI B.C SEETHARAMA RAO, ADVOCATE FOR R-1; R-2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.05.2018 PASSED IN MVC NO.897/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BENGALURU, [SCCH-15], DISMISSING THE PETITION FOR COMPENSATION. IN MFA NO. 7351/2018 BETWEEN: 1. SYED PACHA, S/O SYED MADAR SHAH, AGED ABOUT 69 YEARS. 2. RIMHSA FALAK, D/O MOHAMMED IRSHAD AHMED, AGED ABOUT 9 YEARS. 3. WAFIYA HARMAIN, D/O MOHAMMED IRSHAD AHMED, AGED ABOUT 3 YEARS. ALL ARE R/AT HEGGERE, SIDDARTHANAGAR, TUMKUR-572 107. PETITIONER NO. 2 & 3 ARE MINORS REP. BY THEIR GRAND FATHER AND NATURAL GUARDIAN SYED PACHA. ...APPELLANTS (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND: 1. THE ORIENTAL INSU.,CO., LTD., - 3 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER NO.44/45, RESIDENCY CROSS ROAD, LEO SHOPPING COMPLEX, BANGALORE-25. 2. MR. S H MAYYADI, PWD CONTRACTOR, SUBHAS ROAD, KOPPA-577126. ...RESPONDENTS (BY SRI BHUVAN, ADVOCATE FOR SRI B.C SEETHARAMA RAO, ADVOCATE FOR R-1; R-2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.05.2018 PASSED IN MVC NO.896/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BENGALURU, [SCCH-15] DISMISSING THE CLAIM PETITION FOR COMPENSATION. IN MFA NO. 7354/2018 BETWEEN: MOHAMMED JUNAED, S/O M V NOWSHAD AHMED, AGED ABOUT 16 YEARS, R/AT: B H ROAD, NEW EXTENSION, HEGGERE, SIDDARTHANAGAR, TUMKUR-572 107. PETITIONER IS MINOR, REP. BY THEIR GRAND FATHER AND NATURAL GUARDIAN NOWSHAD AHMED ...APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND: 1. THE ORIENTAL INSU., CO., LTD., NO.44/45, RESIDENCY CROSS ROAD, LEO SHOPPING COMPLEX, BANGALORE-25. - 4 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER 2. MR. S H MAYYADI, PWD CONTRACTOR, SUBHAS ROAD, KOPPA-577 126 ...RESPONDENTS (BY SRI BHUVAN, ADVOCATE FOR SRI B.C SEETHARAMA RAO, ADVOCATE FOR R-1; R-2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.05.2018 PASSED IN MVC NO.899/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU [SCCH-15], DISMISSING THE CLAM PETITION FOR COMPENSATION. IN MFA NO. 7355/2018 BETWEEN: ZAYANTH FATHIMA @ ZAINA, D/O JABEEN SULTHAN, AGED ABOUT 17 YEARS, R/AT R.T.NAGAR, BANGALORE. PETITIONER IS MINOR, REP. BY HER MOTHER AND NATURAL GUARDIAN JABEEN SULTHANA. ...APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND: 1. THE ORIENTAL INSU., CO., LTD., NO.44/45, RESIDENCY CROSS ROAD, LEO SHOPPING COMPLEX, BANGALORE-25. 2. MRS. S H MAYYADI, PWD CONTRACTOR, SUBHAS ROAD, KOPPA-577 126. ...RESPONDENTS (BY SRI BHUVAN, ADVOCATE FOR - 5 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER SRI B.C SEETHARAMA RAO, ADVOCATE FOR R-1; R-2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.05.2018 PASSED IN MVC NO.900/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BENGALURU, [SCCH-15], DISMISSING THE CLAIM PETITION FOR COMPENSATION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT These appeals are filed by the petitioners in MVC.Nos.896, 897, 898, 899 and 900 of 2007, assailing dismissal of the claim petitions by learned XIII Additional Judge, Court of Small Causes and Member, MACT, Bengaluru, dated 31.05.2018. 2. The factual matrix of the case i.e., relevant for the purpose of this appeal are as below: The petitioners in MVC.No.897 to 900 of 2017 and mother of petitioner Nos.2 and 3 in MVC.No.896/2017, were the inmates of the Car bearing No.KA-01-Z-4610, - 6 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER which was driven by one Mr.Mohammed. It is the case of the petitioners that the said Mohammed along with his wife Yasmin Banu and the injured children was travelling in the said car on 09.10.2016. The said Mohammed while driving the vehicle near Balehonnur on Chikkamagaluru Main Road, when a vehicle came from opposite direction, he was frightened, lost control of it and dashed to a lorry bearing No.KA-18-A-9911 which was parked on the left side of the road in negligent manner. The said Yasmin Banu succumbed to the injuries sustained in the accident and petitioner No.2 in MVC.No.896/2017 and the petitioners in the remaining claim petitions sustained injuries in the accident. 3. The Balehonnuru Police registered a case in Cr.No.120/2016 and after investigation, filed a charge sheet against the driver of the car as well as the lorry. The petitioners in MVC.No.896/2017 are the father and children of deceased Yasmin Banu. Petitioner Nos.2 and 3 being minors, are represented by petitioner No.1, their - 7 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER maternal grandfather. Respondent Nos.1 and 2 in all these claim petitions are the insurer and owner of the lorry, which was involved in the accident. 4. The petitioners contended that the accident had occurred due to the negligent parking of the lorry on the road and the driver of the car-Mohammed having lost control over the vehicle, dashed to the parked lorry and as such, they are entitled for compensation from the owner and insurer of the lorry. 5. On service of notice, in all these petitions, the Insurance Company appeared through its counsel. The owner of the lorry did not appear despite service of notice. As such, he was placed ex-parte. 6. The Insurance Company contended that though the lorry bearing No.KA-18-A-9911 was insured by it as on date of the accident, the negligence was on the part of the car driver and as such, unless the owner and insurer of the car are also arrayed as respondents, the petitions suffer - 8 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER from non-joinder of necessary party. Inter-alia, it also contended that the lorry driver was not having effective driving licence as on the date of the accident. As such, it prayed for absolving its liability to pay the compensation. 7. The Tribunal framed appropriate issues in all these claim petitions. Common evidence was also lead before it, wherein 03 witnesses were examined as PWs.1 to 3 and Exs.P1 to P29 were marked. Respondent No.1- Insurance Company examined its official as RW.1 and Exs.R1 to 8 were marked. PW.1 happens to be the next friend and guardian of petitioners No. 2 and 3 in MVC No. 896/2017 and petitioner in MVC No. 897/2017. PW.2 happens to be the guardian of petitioners in MVC No. 898/2017 and MVC No. 899/2017. PW.3 is an eye witness and the guardian of petitioner in MVC No. 900/2017. 8. After hearing the arguments, the Tribunal held that the petitioners in MVC 896 of 2017 are not the dependents of the deceased Yasmin and therefore, they - 9 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER being represented by maternal grandfather despite their father Muhammad was alive cannot maintain a petition. Further, the Tribunal held that the petitioners in MVC 897 to 900 of 2017 are not entitled for compensation from respondent No. 1-Insurance Company since the negligence was on the part of the car driver and these petitioners being the inmates of the car are not entitled for the compensation and proceeded to dismiss the claim petitions. 9. Being aggrieved by the dismissal of the claim petitions, the petitioners are before this Court in these appeals. 10. Heard learned counsel Sri Shripad V. Shastri, appearing for appellants and Sri Bhuvan for Sri. B.C. Seetharama Rao appearing for respondent No.1- Insurance Company in these appeals. 11. The learned counsel appearing for the petitioners/ appellants herein, Sri Shripad V. Shastri, - 10 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER would submit that the Tribunal erred in holding that the petitioners who are daughters of deceased Yasmin Banu cannot be represented by maternal grand father. He also submits that the petitioner No.1 in MVC No. 896/2017 (PW.1), though not a dependant, he is entitled for loss of love and affection and loss of estate on account of death of his daughter. He also submits that the Tribunal could not have dismissed the claim petitions on the ground that the negligence was on the part of the driver of the car. The police papers show that the charge sheet was filed against the car driver as well as the lorry driver. Therefore, the injured petitioners being the inmates of the car, had nothing to do with the negligence and as such, it was a case of composite negligence for them. He further submits that a minor petitioner can be represented through her next friend and it is not necessary that the lawful guardian alone has to file a claim petition. The interests of the minor has to be protected by the Court and therefore, no fault could have been found by the - 11 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER Tribunal for petitioner Nos. 2 and 3 being represented through their maternal grandfather. Therefore, he submits that the impugned judgment of dismissal of the claim petitions is not sustainable in law. 12. It is also pointed out that respondent No. 1- Insurance Company could not have contended that the petitions suffer from non-joinder of necessary parties since the petitioners could very well maintain petitions against the lorry driver, the owner and insurer of the lorry as it was also involved in the accident. 13. Per contra, the learned counsel Sri Bhuvan for Sri B.C. Seetharama Rao, appearing for respondent No.1- Insurance Company would contend that the father of the petitioner Nos.2 and 3 in MVC 896 of 2017 was himself the driver of the car and therefore, in order to avoid conflict of the interest, the grandfather was made to represent the minor petitioners. He submits that the Tribunal held that when the father of the minors was alive, they could not - 12 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER have been represented by the maternal grandfather and therefore, the finding of the Tribunal is sustainable. 14. Secondly, he contends that the petitioners have not arrayed the owner and insurer of the car as party respondents even though such a contention was taken up by the Insurance Company in its written statement. Therefore, the Tribunal having found that the negligence was solely on the part of the car driver, has rightly dismissed the claim petitions. Thus, he defends the impugned judgment. 15. The points that arise for consideration in these appeals are: a) Whether the Tribunal was justified in holding that the petition is not maintainable against the owner and insurer of the lorry? b) Whether the grand father of the minor children of Yasmin Banu could not have represented the minors? - 13 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER 16. It is pertinent to note that the injured petitioners were the inmates of the car which was driven by Mohammad. Admittedly, these injured petitioners were not the contributors to the negligence. They had nothing to do with the driving of the car. The police registered the case and have filed the charge sheet against the driver of the car as well as the driver of the lorry. Charge sheet papers show that the lorry, insured by respondent No. 1- Insurance Company was parked negligently without any indicators and therefore, the Investigating Officer found criminal negligence was on the part of the lorry driver also. 17. It is apposite to observe that the petitioners were inmates of the car driven by Mohamad Irshad. They were not the contributors of the negligence. As such, the case on hand is a case of composite negligence. The concept of composite negligence was considered by a Full Bench of this Court in the case of Ganesh v. Syed - 14 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER Munned Ahamed and others1 and later, reiterated by another Full Bench decision in the case of KSRTC v. Arun alias Arvind and others2. Both these judgments were again reiterated and affirmed by the judgment of the Supreme Court in the case of Khenyei v. New India Assurance Co. Ltd. and others3. The relevant conclusions are extracted below: "22. What emerges from the aforesaid discussion is as follows: 22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of 1 1998 SCC Online KAR 603 2 2003 SCC Online KAR 715 3 (2015)9 SCC 273 - 15 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 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." 18. Therefore, it was not necessary for the petitioners to array the owner and insurer of the car as party respondents. They can maintain claim petitions against any one of the tortfeasor. The injured petitioners, being the inmates of the car, were at liberty to file the claim petitions against either the insured and insurer of the car or the Lorry, and they have chosen the owner and insurer of the lorry which was involved in the accident. Hence, no fault can be found on behalf of the petitioners for having arrayed only the owner and insurer of the lorry. Therefore, the finding of the Tribunal that the claim petitions filed by these petitioners are not maintainable - 16 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER since the driver of the car, in which, they were traveling himself had contributed the negligence is unsustainable. 19. The second aspect to be noted is that the Tribunal holds that the maternal grandfather of the petitioner Nos. 2 and 3 in MVC 896 of 2017 could not have maintained a petition. Admittedly, a claim petition on behalf of minors can be filed by next friend. The interests of the minor has to be protected by the Court, despite the person who represented is unrelated to the minor. The provisions of Order XXXII of CPC are clear in this regard. It is evident that the Tribunal has lost sight of the provisions of Order XXXII of CPC while coming to the conclusion that the grandfather could not represent the minors as he is not a natural guardian. Under these circumstances, the finding of the Tribunal on both these grounds is not sustainable in law. 20. It is pertinent to note that the learned counsel appearing for the respondent-Insurance Company - 17 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER contends that the owner and insurer of the car has not been arrayed as a party. As noted above, there was no need for the petitioners to array the owner and insurer of the car. However, nothing prevented respondent No.1- Insurance Company to file application for impleading the owner and insurer of the car. The provisions of Order I Rule 10 of CPC could have been invoked by respondent No.1-Insurance Company also. In view of the above conclusions, the Appeals succeed. The Tribunal, though an issue was framed regarding the quantum of the compensation amount to be awarded to the petitioners, has not decided the same. Hence, the matters deserve to be remanded to the Tribunal to determine the quantum of compensation amount to be paid to the petitioners. The Tribunal shall also decide whether petitioner No.1 in MVC 896/2017 is the dependant of deceased Yasmin Banu and as to whether he is entitled for loss of 'love and affection' and 'loss of estate'. Hence, the following: - 18 - HC-KAR NC: 2025:KHC:33884 MFA No. 7352 of 2018 C/W MFA No. 7351 of 2018 MFA No. 7354 of 2018 AND 1 OTHER ORDER The appeals are allowed. The impugned judgments and award in MVC Nos.896,897,898,899 and 900 of 2007 are set aside. It is held that the petitioners are entitled for the compensation from the owner and insurer of the lorry which was involved in the accident. The matters are remanded to the Tribunal for the purpose of assessment and determination of the quantum of compensation payable to the petitioners on the basis of the evidence available on record after hearing both the parties. The parties to appear before the Tribunal on 10.10.2025. Sd/- (C M JOSHI) JUDGE tsn* List No.: 1 Sl No.: 37