BHARAT APPASAHEB PATIL Vs. SUBHASH ANANT PATIL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award passed by the Motor accident Claims Tribunal, Kolhapur in Motor accident Claim No. 54 of 2000 whereby the claim filed by the appellant was partly allowed with proportionate cost and the respondent No. 1 to 3 were directed to pay jointly and severally an amount of Rs. 4 lacs to the appellant together with interest @ 9% p. a. from the date of the petition till realisation etc. , The case of the appellant is that: the appellant was returning from his duty on his motor cycle bearing No. MH-09 M-9207 from the left side of the road and when he reached near Kondigra Corss on Sangli Kolhapur Road at about 7. 30 p. m. at that time truck bearing No. MH-09 Q-5959 came from Kolohapur side in high speed due to which it could not control and at the same time one S. T. Bus bearing No. MH-12 1719 was coming from Jaysingpur side proceeding towards Kolhapur. Further it is the case of the appellant that when the truck was towards the rear side of the petitioner, suddenly the truck driver took his truck towards the extreme left side and in that attempt he dashed against the motor cycle and thereafter also to the S. T. Bus. Due to the impact of dash the appellant sustained serious injuries. Therefore, making allegation that the accident occurred due to the sheer negligence of the truck driver, he filed motor accident claim as stated above claiming an amount of Rs. 13,48,000 as compensation as against respondent No. 1 to 3.

(2.) RESPONDENT No. 1 is the owner of the truck while respondent No. 2 is the driver of the truck. The said truck was insured with the respondent No. 3. However, afteer hearing the parties and appreciating their evidence, Motor Accident Claims Tribunal, kolhapur has come to the conclusion that the accident in question has taken place as a result of the contributory negligence of the driver of the truck, namely, the respondent No. 2 and also the driver of the s. T. Bus. Therefore, the Tribunal concluded that the respondent No. 1 to 3 are liable to pay only 50% compensation and for remaining 50% amount S. T. Corporation and the driver of the S. T. Corporation is responsible. Therefore, 1timately, while passing the decree the Tribunal has directed the respondent no. 1 to 3 to make a payment of 50% amount as stated in the award. Therefore, being aggrieved with this award the appellant has approached to this Court.

(3.) 50% of the amount which was directed by the Tribunal has already been paid by the respondents and appellant has received that amount. Now therefore dispute survives in respect of the remaining 50% amount of compensation. However, the finding has been arrived at that because of the composite negligence, the liability of the respondent Nos. 1 to 3 is 50% and remaining 50% liability is of the S. T. driver and S. T. Corporation. Further it is to be noted that the driver of the S. T. and S. T. Corporation were not party to the Motor accident Claim. Therefore, finding has been arrived at as against the S. T. Corporation and the driver of the S. T. in their absence which will not be binding as against the s. T. driver and S. T. Corporation unless an appropriate opportunity is offered to them. The appellant has now moved a Civil application bearing No. 1163 of 2007 under Order-I Rule-10 of the Code of Civil procedure for adding the respondent No. 4 to 6, namely, the S. T. Corporation and the driver of the said S. T. and S. T. Insurance manager. Thus, the appellant is trying to bring on record the proper parties. In fact, when the trial Court has found that it is a case of composite negligence, and 50% liability is of the S. T. Corporation, the trial Court should have given direction to the appellant to add them as party so as to pass the appropriate award. However, unfortunately the trial Court has failed to give the said directions, and instead the trial court has passed the award in respect of the 50% of the amount only. Had the S. T. Corporation been joined as a party it would have been equally possible for the S. T. Corporation to demonstrate that the driver of the S. T. was not responsible for the accident and it is the driver of the truck who is only responsible for the accident.