Sangalad, J.:—
By consent of the Counsel for both the sides, M.F.A No. 3008.95 is taken up for final disposal.
2. The Appellant being aggrieved by the Judgement and Award dated 19.2.92 in MVC No. 1322 of 1988, has preferred this appeal.
3. The Appellant was the driver of the Autorickshaw bearing No. CAW 1169 and he claimed the compensation of Rs. 1,50,000/- for the injuries sustained by him. The compensation of Rs. 15,000/- was awarded. It is also held by the Tribunal that this Appellant was responsible to the extent of 30% for the occurrence of this accident. Another case MVC No. 1323/88 was filed claiming the compensation of Rs. 25,000/-. He was passenger in the autorickshaw. The Tribunal has held that three vehicles are involved in this accident.
4. The Appellant was driving in the autorickshaw bearing registration No. CAW 1169 on Bannerghatta Road, Bangalore and the Petitioner in MVC No. 1323 of 1988 was the passenger in the said Autorickshaw. At that time, van in question came from the hind side and the lorry in question came from the opposite side. Both the drivers of the Lorry and Van were driving the vehicle in rash and negligent manner and dashed against the autorickshaw. In consequence of this, the Appellant sustained fatal injuries, for which, he has been compensated to the extent of Rs. 15,000/-.
5. As far as the compensation amount is concerned, there is no dispute. The finding of the Tribunal that the Appellant himself contributed to the extent of 30% is also not in dispute. The driver of the lorry is held to have contributed to the extent of 20% and the driver of the Van 50% respectively.
6. Mr. A.K Bhat, learned Counsel for the Appellant submitted that the Appellant is entitled to recover the compensation amount either from the insurer of the Lorry or from the Matador van or from the both. His sole contention is that he is entitled to proceed against one of them or both of them. Mr. Bhat also relied upon the decision in the case of Ganesh v. Syed Munned Ahamaed . ILR 1999 KAR 403.. Mr. Jai Prakash, learned Counsel for the Respondent No. 2 strenuously contended that this decision is inapplicable as the appellant himself has contributed for the accident. This decision is only applicable as far as composite negligence is concerned. Mr. Ramesh, learned Counsel for Respondent No. 4 submitted that there was no policy in respect of the Matador Van and as such, the appeal be dismissed against Respondent No. 4.
7. In view of the rival submissions, the point that arise for my consideration is that whether the appellant is entitled to recover the compensation amount either from the insurer of the lorry or the owner of the Matador as there was no insurance on the date of the accident.
8. At the very outset, it has to be stated that in the decision referred, in para 23, it is observed as follows:—
“Therefore, in conclusion, in so far as the first question referred to the Full Bench by the Division Bench is concerned, my answer is that in case of Motor Vehicle Accident caused due to composite negligence of the drivers of two or more vehicles, the persons who is injured or legal representatives of a person who is killed in such an accident, are entitled to claim the entire compensation from all or any of the Drivers, owners and insurers of the vehicle.”
9. In the decided case, the insurer was travelling in the lorry. There was head-on-collision between two lorries. BTS bus was also involved but it was exonerated. The ratio laid down in the decided case is that in case of composite negligence, the Petitioner is entitled to recover the compensation amount from all or any of the drivers, owners or insurer of the vehicle.
10. In the case on hand, the facts are little bit peculiar. In this case, the Appellant who is inured has also contributed to the extent of 30%. The three vehicles, are involved in the accident. Under such circumstances, whether it can be held that he is estopped from recovering the compensation amount as laid down in the above cited case. In my opinion, it cannot be. The Tribunal has held that the Appellant has contributed to the extent of 30%. In view of this finding, the Appellant cannot claim to the extent of 30%. In the remaining 70%, whether he could claim either from the driver, owner, or insurer of one vehicle or both the vehicles. Mr. Jaiprakash, learned Counsel for Respondent No. 2 submitted that when the Appellant himself has contributed to the extent of 30%, he is totally debarred from claiming compensation. This submission cannot be accepted. After foregoing 30% of the compensation, the remaining balance he can claim as this accident stood on the same footing as that of composite negligence. Between the Lorry and the Matador, it is composite negligence as far as appellant is concerned. In my opinion the ratio laid down in the case of Ganesh v. Syed Munned Ahmed (supra), is aptly and justly applicable as far as 70% of the liability of the concerned. Therefore, the following order.
In the result, the appeal is allowed and the Appellant is entitled to recover 70% of the compensation amount either from the driver, owner or insurer of the lorry or from the owner or driver of the Matador van.