Gujarat High Court
Gujarat State Road Transport ... vs Gurunath Shalu And Ors. on 22 June, 1988
Equivalent citations: [1990]68COMPCAS121(GUJ), (1989)1GLR581
JUDGMENT Ravani, J.
1. A point of importance raised in this appeal is - should a joint tortfeasor be allowed to go scotfree and should the Tribunal have ignored the plea raised by the appellant-corporation, for joining the joint tortfeasor in a claim petition before determining the question as regards the respective negligence and liability arising out of the accident ?
2. The claimants were going in an autorikshaw bearing No. GRV 528 in G.I.D.C. Estate, Panoli, and were passing through national highway No. 8. At that time, State transport bus bearing No. GRR 9935 which was coming from opposite side collided with the rickshaw. The accident took place on December 28, 1984, at about 9.00 a.m. On account of the accident, one Balkrishna Shahu received fatal injuries and died.
3. The father, sister and brothers of the deceased preferred a claim petition. In the claim petition, the owner of the rickshaw and the insurance company of the rickshaw had not been joined. The appellant-corporation contended that the rickshaw owner and the insurance company be also joined as parties. The Tribunal disposed of this contention by holding that it was for the petitioner to select the tortfeasor for suing; and non-joinder of another tortfeasor would not entitle the tortfeasor joined in the petition, to pray that the amount of compensation to be awarded be reduced to the extent of the liability of the tortfeasor who is not joined in the petition. The Tribunal determined the extent of liability of all the tortfeasors and allowed the claim petition. The appellant corporation has preferred this appeal against the award. The corporation mainly feels aggrieved by the aforesaid finding of the Tribunal.
4. Prima facie, on technical considerations, the Tribunal appears to be right and its decision does not seem to be incorrect. However, the practical aspect and certain intractable difficulties which may arise on account of such a course being adopted by the Tribunal cannot be lost sight of. Some such considerations which ought to have weighed and which ought to have been taken into consideration by the Tribunal, while deciding questions regarding joinder or non-joinder of joint tortfeasors are as follows :
(i) It is a settled legal position that even if the liability of a joint tortfeasor is to the extent of 1 per cent., the entire amount, i.e., hundred per cent. of the amount of compensation awarded can be recovered from the tortfeasor whose liability is adjudged to the extent of 1% only. In a given case, the claimants may enter into collusion with the tortfeasor whose liability may be to a greater extent and that joint tortfeasor may not be joined at all before the Tribunal. This possibility cannot be ruled out.
(ii) Ultimately, in a given case, the entire amount of compensation may be paid by the insurance company or public body. But, while determining the question as to the extent of liability, the question as regards who was negligent in driving the vehicle has got to be decided by the Tribunal. While deciding some cases, it may not be of much significance for the Tribunal (or for that matter for this High Court also) to say as to which driver was responsible, and to what extent, for causing the accident in question. However, for determining the rate of premium to be charged for each type of vehicle and for determining the reasonable rate of passenger fare by public corporations like the appellant herein, decisions on such questions have far-reaching significance. Therefore, though it may not be necessary for determining the issues involved in the case, it is certainly a matter of consequence for the purposes of public finance and particularly for determining the policy questions of finances pertaining to public institutions like transport corporations and insurance companies. Therefore, it is very much necessary that whenever such question is raised before the Tribunal, as far as possible, the Tribunal should not avoid the same and should see that all the tortfeasors are brought before the Tribunal and all the issues pertaining to contributory negligence are decided in the same claim petition.
(iii) Be it noticed that the bifurcation of the liability without the presence of another joint tortfeasor becomes an academic formality only. The other joint tortfeasor, in whose absence the question is decided, may very well say that the decision is not binding on him because he was not a party to the said proceeding. On the other hand, if the other joint tortfeasor is brought on the record and is given an opportunity to plead his case, he may be in a position to show that he was not at all negligent, or that in his presence, certain evidence against him can also be produced by the other joint tortfeasor and his liability may be adjudged to a larger extent.
(iv) As far as public corporations like the appellant are concerned, the decision fixing the extent of negligence and/or the liability may even have impact on departmental proceedings against the driver concerned.
(v) In the present complex society in which the judicial institutions are working, the courts and tribunals cannot, and as far as possible should not, function so as to leave problems for future decision. Avoidance of future litigation and prevention of multiplicity of litigations should be the endeavor of all judicial tribunals. We cannot function in isolation, totally oblivious and indifferent to the needs for co-ordination between different public bodies and the need for speedy resolution of socio-economic issues, reference to which has been made hereinabove.
(vi) In this connection, reference may be made to the provisions of Order 1, rule 10(2) of the Civil Procedure Code. As per this provision, a civil court, to which the provisions of the Civil Procedure Code are applicable, is empowered to direct that a particular party be added as plaintiff or defendant whose presence, in the opinion of the court, may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In proceedings before the Motor Accidents Claims Tribunal, this principle can certainly be resorted to, or at any rate the same should be kept in mind by the Tribunal while deciding such questions.
5. In view of the aforesaid position, without deciding this question finally either way, on an assumption that the Tribunal's decision is technically correct, we would like to further observe as follows. Simply because it may be permissible, technically we hope the Tribunals will not adopt this easy course which may quickly dispose of matters. Such disposals will certainly sow the seeds for future litigation and it is bound to multiply litigation. Therefore, whenever a plea for joining another joint tortfeasor is raised and prayed for, it would be better for the Tribunal to insist that all the joint tortfeasors be brought on record. At any rate, when an application for joining a party is submitted by a tortfeasor on record, we hope such application will be allowed almost as a matter of rule and practice and another joint tortfeasor will be joined as party defendant/opponent.
6. In this case, no such application was there on record. In the peculiar and special facts of this case, we do not find any fault with the Tribunal. Subject to the aforesaid observations, we propose to dismiss this appeal summarily.
7. In the result, subject to the aforesaid observations, the appeal is dismissed summarily.