Gujarat High Court
Haji Ibrahim Sama vs P. Subari S/O Abubakar on 28 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/12853/2023 ORDER DATED: 28/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12853 of 2023
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HAJI IBRAHIM SAMA
Versus
P. SUBARI S/O ABUBAKAR
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Appearance:
VATSAL M PARIKH(9340) for the Petitioner(s) No. 1
VISMAY V MALKAN(9284) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/07/2023
ORAL ORDER
1. The petition challenges the order dated 08.12.2022 passed by the Motor Accident Claims Tribunal, Anjar at Kachchh, below exh. 29 and consequent order, passed below exh. 1 in Motor Accident Claim Petition No. 1270 of 2015 rejecting the plaint.
2. Learned advocate Mr. Jitendra Malkan with learned advocate Mr. Vismay Malkan for the petitioner submitted that learned Page 1 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023 NEUTRAL CITATION C/SCA/12853/2023 ORDER DATED: 28/07/2023 undefined Tribunal has erred in not allowing exh. 29 whereby, the learned Tribunal, without even considering the endorsement made by the Advocate from side of the claimant of having expressed no objection if the Truck bearing registration No. GQD-4371 owner and insurance company are joined as parties, have rejected the claims petition.
2.1 The learned advocate for the petitioner submitted that exh. 29 came to be moved by opponent No. 3 insurance company on the ground that as per the petition and the FIR, another offending vehicle, bearing registration No. GQD-4371, apart from Truck bearing registration No. AL-7Q-9180 was involved and the owner Kishorejumar Gokuldas Thacker and the insurance company of that vehicle had settled the Motor Accident Claim Petition No. 938 of 1998 (New No. 1315 of 1999) in the Lok Adalat and thus, without impleading them as a party, the application would not be maintainable and thus, a prayer was made to reject the claim petition.
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3. The learned Tribunal observing that the claim petition was not under Section 163-A of the Motor Vehicles Act, 1988 (MV Act) and to prove the adverse evidence of negligence under third party liability of the opposite vehicle, cannot be allowed against the insurance company of the own truck, which was driven by the claimant himself and that, the petitioner cannot be allowed to change the version of the truck driven by him and to join the owner and the insurance company of the own truck. Hence, the learned Tribunal observed that the nature of the claim cannot be permitted to be changed from Section 166 to 163-A of the MV Act and the observation so made did not allow the amendment of the claim petition to implead as prayed by third opponent which the learned Tribunal observed that it would be a change of nature of the claim petition under Section 163-A of the MV Act.
4. It is unfortunate to note that the learned Tribunal has entered into details in the observations which were not at all warranted. The claim petition filed is under Section 166 of the MV Act. When, the petitioner had no objection to the application moved by the opponent Page 3 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023 NEUTRAL CITATION C/SCA/12853/2023 ORDER DATED: 28/07/2023 undefined No. 3 - The National Insurance Co. Ltd. and had given the endorsement of no objection to join Truck No. GQD-4371 owner and insurance company as a party respondents, the Tribunal ought to have done so.
4.1 Reliance was placed in the case of New India Assurance Company Limited v. Ayar Sakhiben Jivaben, 2018 (0) AIJEL-HC 24063 and in Gujarat State Road Transport Corporation v. Gurunath Shahu, rendered in First Appeal No.427 of 1988. 4.2 Learned advocate Mr. Malkan, in accordance with judgment of Khenyei vs. New India Assurance Company Ltd. & Ors., (2015) 9 SCC 273, has submitted that the learned Tribunal would be required to determine the extent of negligence between the joint tortfeasors so that the inter se liability can be determined and are would be in a better position to recover the sum from the other in accordance with the order passed by the learned Tribunal in the concerned matter. He further submits that in the decision as laid down in the case of Ayar Sakhiben Jivaben (supra), it is held that whenever a plea is raised for Page 4 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023 NEUTRAL CITATION C/SCA/12853/2023 ORDER DATED: 28/07/2023 undefined joining another tortfeasor, it would be in the interest of justice and for just decision, the Tribunal should allow the application as a matter of rule and practice and should order the joining of other tortfeasor as a party to the matter.
4.3 In the case of Ayar Sakhiben Jivaben (supra), while relying upon the decision in Gujarat State Road Transport Corporation (supra) and even the in the case of Lalabhai Mavjibhai Parmar v. Raval Natvarbhai Melabhai, referring to the Division Bench judgment of this Court, whenever a plea for joining another tortfeasor is raised and prayed for, it would be better for the Tribunal to insist that all the joint tortfeasor be brought on record and when an application for joining party is submitted by a tortfeasor on record, the said application is to be allowed almost as a matter of rule and practice and another joint tortfeasor will have to be joined as party opponent.
4.4 In the case of Lalabhai Mavjibhai Parmar (supra), this Court vide order dated 09.03.2016, considering the decision rendered by Page 5 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023 NEUTRAL CITATION C/SCA/12853/2023 ORDER DATED: 28/07/2023 undefined the Hon'ble Supreme Court in Khenyei (supra), observed in paragraph 4 as under:
"4. Therefore, prima facie, there is no substance in the petition, in as much as, the law is well settled that though compensation can be awarded in absence of all tort feasors more particularly, when there is no composite negligence between two tort feasors and when there is no evidence regarding negligence of applicant, when one of the tort feasor has brought to the notice of the Court that it would be appropriate to join other tort feasor there is nothing in the law, which restricts the Court to refuse to join such tort feasor. It is also claimed that though there is inter se negligence of both the tort fessers, it would be appropriate to have their presence before the Court so as to fix their liability to avoid multiplicity of proceedings. Therefore, there is difference between the issue related to negligence either composite or contributory so far as claimants are concerned as against presence of necessary party in any such claim petition."
4.5 It is true that in case of composite negligence, the claimant has right to choose the party - respondent, as the composite negligence refers to negligence on the part of two or more persons and claimant would, thus, be in his own right to exercise the option of recovering the monies from any of the tortfeasors. In case of composite negligence as has been held in Khenyei (supra), the claimant is entitled to sue one or both joint tortfeasors jointly and severely in Page 6 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023 NEUTRAL CITATION C/SCA/12853/2023 ORDER DATED: 28/07/2023 undefined case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the claimant is not permissible as the claimant can recover at his option whole damages from any of them. However, where it has been brought on record and to the notice of the Court by one of the tortfeasors to implead the other offending tortfeasor as a party, then, it would become necessary for the Tribunal as rule and practice to join the other tortfeasor since the negligence would thereafter, have to be determined and the inter se liability gets fixed so as to enable the other tortfeasor to recover the sum of money from the other after making whole of the payment to the claimant to the extent and to satisfy the liability of the others, taking this proposition of law, it would be just for the tribunal to allow the application of the other joint tortfeasors making a prayer to join the other offending vehicle so that inter se liability could be decided by the Court and the result, the tortfeasor would have an option to recover the money, if at all, is deposited in context of the amount paid to the claimant, who exercises the option to recover this compensation amount from any of the tortfeasors. Page 7 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023
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5. In view of the reason given herein above, this petition is allowed. The order 08.12.2022 passed by the Motor Accident Claims Tribunal, Anjar at Kachchh, below exh. 29 and consequent order, passed below exh. 1 in Motor Accident Claim Petition No. 1270 of 2015 rejecting the plaint, is hereby set aside. The owner and the insurance company of the Truck bearing registration No. GQD- 4371 is permitted to be joined as party respondents in the original claim petition being Motor Accident Claim Petition No. 1270 of 2015 to be restored on file and the claim petition is directed to be proceeded in accordance with law.
[ Gita Gopi, J. ] hiren /23 Page 8 of 8 Downloaded on : Sat Sep 16 23:27:04 IST 2023