Whether MACT can apportion liability for payment of compensation to the victim of the motor accident between two tortfeasors?

Insofar as judgment of Supreme Court in case of Khenyei v/s. New India Assurance Co. Ltd. and Ors., (supra) relied upon by the learned counsel for the respondent no.1 is concerned, it is held by the Supreme Court that the apportionment of compensation between two tortfeasors vis a vis the plaintiff/claimant is not permissible. It is held by the Supreme Court that liability of the joint tortfeasor is joint and several. 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. He can recover at his option whole damages from any of them. There is no dispute about the proposition of the law laid down by the Supreme Court in case of Khenyei v/s. New India Assurance Co. Ltd. and Ors., (supra) relied upon by the learned counsel for the respondent no.1.{Para 44}

45. In my view, since the respondent no.1 had filed an application for

compensation under section 163-A of the Motor Vehicles Act, 1988, there was no question of the respondent no.1 proving any negligence or default against any of the tortfeasors. A perusal of the impugned judgment and award passed by the Tribunal clearly indicates that the Tribunal has rendered a perverse finding that the compensation amount of Rs.38,94,200/- was required to be apportioned equally between the owner of the offending vehicle and the owner of the Tata Magic vehicle in which the respondent no.1 was travelling. In my view, the impugned judgment and award deciding the negligence at the first instance on the part of the driver of the offending vehicle as well as Tata Magic vehicle itself is contrary to the section 163 of the Motor Vehicles Act and shows total perversity. There is thus no question of apportionment of any liability in the ratio of 50 : 50 or in any other ratio between the owner of the offending vehicle and the owner of the Tata Magic vehicle. The judgment and award of the Tribunal thereby rendering the findings on the issue of negligence for the purpose of deciding the extent of contributory negligence and thereafter dividing the compensation at two parts is ex-facie perverse.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 54 OF 2013

ICICI Lombard General Insurance Company Limited, Vs Kumar Aftab Nasim Ansari

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