Gujarat High Court
New India Assurance Co Ltd vs Ayar Sakhiben Jivabhai on 14 December, 2018
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/5299/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5299 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NEW INDIA ASSURANCE CO LTD
Versus
AYAR SAKHIBEN JIVABHAI
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Appearance:
MR AJAY R MEHTA(453) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 4
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 14/12/2018
ORAL JUDGMENT
1. Learned advocate for the petitioner seeks permission to delete respondent No.4. Permission, as prayed for, is granted. Learned advocate for the petitioner to carry out the amendment in the cause title of the petition, forthwith.
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C/SCA/5299/2018 JUDGMENT
2. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed that the order dated 23.11.2017 passed by the Motor Accident Claims Tribunal (Main), Patan, below Exh.18 in Motor Accident Claim Petition No.172 of 2017 be quashed and set aside and thereby the application dated 22.11.2017 be allowed.
3. Heard learned advocate for the petitioner. Though Rule is served to respondent Nos.1 to 3, nobody appears on their behalf.
4. It is submitted that the present respondents have filed Motor Accident Claims Petition No.172 of 2017 before the Motor Accident Claims Tribunal (Main), Patan, ('Tribunal' for short) under Section 166 of the Motor Vehicles Act, 1988 ('the Act' for short) wherein the respondent claimed Rs.8,00,000/ for the death of one Ayar Jivabhai Dungarbhai. It is alleged that the said person died in the accident, which occurred on 15.06.2016. The deceased was a pillion rider on motorcycle bearing Registration No.GJ24F5399 collided with Tanker bearing Page 2 of 11 C/SCA/5299/2018 JUDGMENT Registration No.GJ12BT6009. The petitioner is joined as insurer of the aforesaid tanker, which is alleged to have been involved in the accident. 4.1 It is submitted by the learned advocate for the petitioner that the original claimant has not joined the driver, owner and insurer of motorcycle bearing Registration No.GJ24F5399 in the said proceedings. The petitioner, therefore, has submitted that the application Exh.18 before the Tribunal wherein the petitioner has prayed that the driver, owner and Insurance Company of Motorcycle bearing Registration No.GJ24F5399 be joined as party opponents in the claim petition filed by the original claimant. However, the Tribunal by impugned order dated 23.11.2017 rejected the said application. 4.2 Learned counsel for the petitioner contended that while rejecting the application submitted by the petitioner, the Tribunal has wrongly placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Co. Ltd. and others reported in 2015 ACJ 1441 : AIR Page 3 of 11 C/SCA/5299/2018 JUDGMENT 2015 SC 2261. It is submitted that the said judgment was on a different point wherein the Hon'ble Supreme Court has held that tort feasors can seek recovery or possession from any other tort feasors. However, the Hon'ble Supreme Court has held that the all the joint tort feasors should not be joined in the proceedings. 4.3 Learned counsel for the petitioner has placed reliance upon the order dated 09.03.2016 passed by this Court in Special Civil Application No.3730 of 2016 as well as the decision rendered by the Division Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Gurunath Shahu and others reported in 1989 ACJ 314. Relying upon the aforesaid decision, it is contended that the Division Bench has specifically held in the aforesaid judgment that whenever a plea for joining another joint tort feasor is raised and prayed for, it would be better for the Tribunal to insist that all the joint tort feasors be brought on record. However, in the present case, the Tribunal has wrongly rejected the application submitted by the petitioner. He, therefore, urged that the impugned order be set aside Page 4 of 11 C/SCA/5299/2018 JUDGMENT and thereby driver, owner and Insurance Company be joined as party opponents in the claim petition pending before the Tribunal.
5. Having heard learned advocate for the petitioner and having gone through the material produced on record, it has emerged that the respondent - original claimant has filed claim petition before the Tribunal under Section 166 of the Act, in which, he has claimed Rs.8,00,000/ for the death of Ayar Jivabhai Dungarbhai. As per the averments made in the said claim petition, the aforesaid person who was a pillion rider on motorcycle died because of accident, which had taken place between tanker bearing Registration No.GJ12BT6009 and the motorcycle bearing Registration No.GJ24F5399. It is the case of the petitioner that the petitioner is the insurer of the tanker. That the original claimant has not joined the driver, owner and insurer of the motorcycle. The petitioner submitted an application before the Tribunal for joining the aforesaid persons as party opponents.
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C/SCA/5299/2018 JUDGMENT 6. In the aforesaid background, if the decision
rendered by the Division Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Gurunath Shahu and others (supra) is examined, the Division Bench of this Court has observed in Paragraphs4(i), (ii) and 5 as under:
"(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 Page 6 of 11 C/SCA/5299/2018 JUDGMENT 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 farreaching 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."
"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 Page 7 of 11 C/SCA/5299/2018 JUDGMENT 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."
7. In the case of Lalabhai Mavjibhai Parmar Vs. Raval Natvarbhai Melabhai (supra), this Court vide order dated 09.03.2016 has considered the decision rendered by the Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Co. Ltd. and others (supra) and thereby observed in Paragraph4 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 Page 8 of 11 C/SCA/5299/2018 JUDGMENT 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."
8. Thus, from the aforesaid decision rendered on 09.03.2016 by this Court in the case of Lalabhai Mavjibhai Parmar Vs. Raval Natvarbhai Melabhai (supra), it is revealed that in the said case, the application for joining concerned party was allowed by the Tribunal and the said order was challenged before this Court by filing the aforesaid petition. This Court examined the said aspect and stated that the driver, owner and Insurance Company of the other vehicle can be joined as party by the Tribunal on its own or even by the other party.
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C/SCA/5299/2018 JUDGMENT 9. The Division Bench of this Court has
specifically held that whenever a plea for joining another tort feasor is raised and prayed for, it would be better for the Tribunal to insist that all the joint the tort feasor be brought on record. This Court had further observed that when an application for joining party is submitted by a tort feasor on record, the said application is to be allowed almost as a matter of rule and practice and another joint tort feasor will be joined as party opponent.
10. Keeping in view the aforesaid decisions, if the facts as stated hereinabove are examined, this Court is of the view that the Tribunal has committed an error while rejecting the application submitted by the present petitioner for joining driver, owner and Insurance Company of the vehicle i.e. motorcycle bearing Registration No.GJ24F5399 as party opponents in the claim petition. Thus, the impugned order is hereby quashed and set aside. The application Exh.18 submitted by the petitioner is allowed. Resultantly, driver, owner and Insurance Company of the vehicle i.e. motorcycle bearing Page 10 of 11 C/SCA/5299/2018 JUDGMENT Registration No.GJ24F5399 are directed to be joined as party opponents in Motor Accident Claim Petition No.172 of 2017 pending before Motor Accident Claims Tribunal (Main), Patan.
11. The petition is accordingly allowed. Rule is made absolute, to the aforesaid extent.
(VIPUL M. PANCHOLI, J) piyush Page 11 of 11