IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THIS THE 5th DAY OF AUGUST, 2010 CIVIL MISCELLANEOUS APPEAL No.2508 of 2003 Between United India Insurance Company Ltd., rep. by its Divisional Manager …APPELLANT(S) A N D Kancherla Subbarayudu and others …RESPONDENT(S) THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL MISCELLANEOUS APPEAL No.2508 of 2003 ORAL JUDGMENT: Heard Sri T.Mahender Rao, learned Standing Counsel appearing for the appellant. 2. Despite notice, none appears for R-3 i.e. New India Insurance Company Limited. However, this Court took assistance of the panel advocate Sri R.Venkatarao, who is readily available in the Court, and heard him for R-3. 3. Aggrieved by the non-apportionment of the liability in the order and decree, dated 29.08.2002, passed by the Motor Accident Claims Tribunal cum-II-Additional District Judge, Cuddapah (for brevity “the Tribunal”), in M.V.O.P.No.213 of 1997, awarding a sum of Rs.3,00,000/- towards compensation for the injuries suffered by the petitioner therein, in a motor accident that occurred on 26.03.1996, the appellant-United India Insurance Company Limited has filed the present Civil Miscellaneous Appeal. 4. It is a case of head on collision between two offending vehicles i.e., a jeep and an auto. 5. Appellant is insurer of the jeep, owned by 4th respondent; 1st respondent is the claimant, and 3rd respondent is insurer of auto, owned by 2nd respondent. 6. The particulars regarding the method and manner in which the accident took place and the rash and negligence etc., are not referred to herein, as they are not in dispute. 7. The Tribunal, after appreciating the entire material, including the evidence, both oral and documentary, available on record, awarded a total sum of Rs.3,00,000/- towards compensation to the claimant for the injuries suffered by him in the accident making the appellant and respondents 2 to 4 jointly and severally liable to pay the same. 8. The only contention of the appellant is that the Tribunal, having recorded the finding that in view of the evidence of P.W.1, corroborated by Ex.A.1 (FIR) and Ex.A.3 (charge sheet), the accident occurred due to the rash and negligent driving of the drivers of both the vehicles, erred in fastening the liability, jointly and severally, on both the insured and the insurers. 9. The only point that arises for consideration, in this appeal, is whether the liability to pay the compensation awarded by the Tribunal is to be apportioned as sought by the appellant? 10. I have carefully gone through the impugned order, along with other material, available on record. Admittedly, it is a case of head on collision and the Tribunal had recorded a finding that, in view of the evidence of P.W.1, corroborated by Ex.A.1 (FIR) and Ex.A.3 (charge sheet), the accident occurred due to rash and negligent driving of the drivers of both the vehicles. In this connection, the Tribunal also recorded a finding that though the appellant took the plea that there was no negligence on the part of the drivers of both the 2nd and 4th respondents, no evidence was adduced in that regard and, therefore, an adverse inference can be drawn against them and held that both the drivers are responsible for the accident. 11. When such a finding has been recorded holding that both the drivers are responsible for the accident, the liability of the insurers should also have been fastened independently, instead of making them liable jointly and severally. The Tribunal, in the impugned order, while answering issue No.3, relating to the relief, ordered as under: “In the result, petition is allowed awarding compensation of Rs.3,00,000=00 to the petitioner with proportionate costs and interest at 9% p.a., from the date of petition till the date of realisation, payable by the respondent R.1 to R.4 jointly and severally. The amount of compensation now awarded includes the compensation if any awarded and paid to the petitioner U/s 140 of M.V.Act. the petitioner is entitled to withdraw 50% of the amount as and when deposited by the respondents and the remaining half of the compensation amount shall be deposited in any Nationalised Bank for a period of one year. The respondents shall deposit the amount within one Month. Advocate’s fee is fixed at Rs.2,000=00.” 12. From the above extract, what appears is that all the respondents therein i.e., both the insured and the insurers were held jointly and severally responsible for payment of the compensation to the claimant. This finding, in my considered view, is erroneous and instead there ought to have been the apportionment of liability of the payment of compensation between them i.e., appellant and 2nd respondent, on one hand; and respondent Nos.3 and 4, on the other. 13. Therefore, the order of the Tribunal should be read as under: “In the result, petition is allowed awarding compensation of Rs.3,00,000=00 to the petitioner with proportionate costs and interest at 9% p.a., from the date of petition till the date of realisation, payable by the respondent Nos.1 and 2 on one side a sum of Rs.1,50,000/- jointly and severally; and respondent Nos.3 and 4 on the other side a sum of Rs.1,50,000/- jointly and severally. The amount of compensation now awarded includes the compensation if any awarded and paid to the petitioner under Section 140 of M.V. Act. The petitioner is entitled to withdraw 50% of the amount as and when deposited by the respondents and the remaining half of the compensation amount shall be deposited in any Nationalised Bank for a period of one year. The respondents shall deposit the amount within one Month. Advocate’s fee is fixed at Rs.2,000=00.” 14. With the above modification, the Civil Miscellaneous Appeal is allowed. In all other aspects ad respects, the impugned order shall remain unaltered. However, there shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA 05th AUGUST 2010 CVRK