Gujarat High Court
Gujrat State Road Transport ... vs Gurunath Shahu And Ors. on 22 June, 1988
Equivalent citations: 1(1989)ACC414, 1989ACJ314
JUDGMENT A.P. Ravani, J.
1. A point of importance raised in this appeal is--Should a joint tort-feasor be allowed to go scotfree and should the Tribunal have ignored the plea raised by the appellant-Corporation, for joining the joint-tortfeasor in 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 the national high way No. 8. At that time S.T. Bus bearing No. GRR 9935 which was coming from opposite side collided with the rikshaw. 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 claim petition. In the claim petition the owner of the rikshaw and the insurance company of the rikshaw had not been joined. The appellant Corporation contended that rikshaw 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 tort-feasor for suing and non-joinder of another tort-feasor Would not entitle the tort-feasor joined in the petition, to pray that the amount of compensation to be awarded be reduced to the extent of the liability of the tort-feasor who is not joined in the petition. The Tribunal determined the extent of liability of all the tort-feasors 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 fight and its decision does not seem t6 be incorrect. However, the practical aspe,ct 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 settled legal position that even if the liability of a joint tort-feasor 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 entire amount of compensation may be paid by 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 decision on such questions have far-reaching significance. Therefore, though it may not be necessary for determining the issues inyolved 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 Tribunal, as far as possible, the Tribunal should not avoid' the same and should see that all the tort-feasors are brought before the Tribunal and all the issues pertaining to contributory negligence are decided in the same claim petition.
(iii) Be it noted that 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 to him because he was not party to the said proceeding. On the other hand if 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 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 the departmental proceedings against the driver concerned.
(v) In a 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 the future decision. Avoidance of future litigation and prevention of multiplicity of litigation should be endeavour of all the Judicial Tribunals. We cannot function in isolation being 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 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 Tribunal's decision is technically correct, we would like to further observe as follows. Simply because technically it may be permissible, 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 fructify the litigation. Therefore, 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-feasor be brought on record. At any rate when an application for joining 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 tort-feasor 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. Therefore subject to the aforesaid observations we propose to dismiss this appeal summarily.
7. In this result, subject to the aforesaid observations dismissed summarily.