New India Assurance Co Ltd vs Gauriben Jayeshbhai Majethiya & 6 on 2 March, 2015

[Cites 8, Cited by 0]

Gujarat High Court

New India Assurance Co Ltd vs Gauriben Jayeshbhai Majethiya & 6 on 2 March, 2015

Bench: Abhilasha Kumari

         C/SCA/15954/2006                                   JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 15954 of 2006



FOR APPROVAL AND SIGNATURE:


HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
===========================================================
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                  No
     the judgment ?

4    Whether this case involves a substantial question of                  No
     law as to the interpretation of the Constitution of India
     or any order made thereunder ?

================================================================
             NEW INDIA ASSURANCE CO LTD....Petitioner(s)
                             Versus
         GAURIBEN JAYESHBHAI MAJETHIYA & 6....Respondent(s)
================================================================
Appearance:
MR PALAK H THAKKAR, ADVOCATE for the Petitioner
MS KRISHNA DESAI FOR MR VC VAGHELA, ADVOCATE for Respondent(s) No. 1 - 5
RULE SERVED BY DS for the Respondent(s) No. 6 - 7
================================================================

          CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
                 KUMARI

                             Date : 02/03/2015


                            ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India, has been preferred, inter Page 1 of 16 C/SCA/15954/2006 JUDGMENT alia, with a prayer to quash and set aside the order passed by the Motor Accident Claims Tribunal, Porbandar ("the Tribunal" for short), dated 03.01.2006, below the application at Ex.29, in Motor Accident Claim Petition No.10 of 1998, whereby, the application of the petitioner

- The New India Assurance Company Limited, for joining the Railways as partyrespondent to the claim petition, has been rejected.

2. The petitioner is an Insurance Company carrying on the business of insurance throughout the country. Respondents Nos.1 to 5 are the original claimants in Motor Accident Claim Petition No.10 of 1998, and are the heirs of deceased Jayeshbhai K.Majethiya. Respondent No.6 is the Driver and respondent No.7 is the owner of the vehicle. Respondents Nos.6 and 7 have been served with notice of Rule but have chosen not to put in an appearance before this Court.

3. Respondents Nos.1 to 5 had filed Motor Accident Claim Petition No.10 of 1998 on 12.01.1998, before the Tribunal under Section 166 of the Page 2 of 16 C/SCA/15954/2006 JUDGMENT Motor Vehicles Act, 1988 ("the Act" for short), claiming an amount of Rs.20 lakhs. The petitioner had filed its reply to the said claim petition. The petitioner had taken a contention in Paragraph4 of the said reply that respondents Nos.1 to 5 (original claimants) have not joined the owner and the Insurance Company of the Diesel Engine belonging to the Railways, against which Maruti Car No.GJ11E9929 dashed, causing the death of Jayeshbhai, who was a passenger in the car. The petitioner also filed a separate application at Ex.29 for impleading the Driver of the Engine and the Railways as partyopponents in the claim petition, on the ground that they are joint tortfeasors. By the impugned order dated 03.01.2006, the Tribunal rejected the said application on the ground that it has no power to entertain an application against the Railways and that respondents Nos.1 to 5 (original claimants) do not want to join Railways as partyopponent. Being aggrieved by the above stated order, the petitioner has approached this Court by way of the present Page 3 of 16 C/SCA/15954/2006 JUDGMENT petition.

4. Mr.Palak H.Thakkar, learned advocate for the petitioner, has submitted that the Tribunal has committed an error of law apparent on the face of the record. The accident occurred at an unmanned Railway Crossing between a Maruti car and the Diesel Engine belonging to the Railways. The Tribunal, therefore, ought not to have rejected the application of the petitioner for impleading the Railways, it being a joint tort feasor.

5. It is next submitted that the claim for compensation is maintainable before the Tribunal against other persons or agencies who are held to be guilty of composite negligence or are joint tortfeasors, if arising out of an accident caused by a motor vehicle. The Tribunal has erred in not exercising the jurisdiction vested in it and by holding that Railways cannot be impleaded as partyrespondent in a claim petition under the the Act.

6. It is submitted that the Supreme Court, in the Page 4 of 16 C/SCA/15954/2006 JUDGMENT case of Union of India v. Bhagwati Prasad (D) and others - AIR 2002 SC 1301, has held that a claim for compensation is maintainable before the Tribunal against other persons or agencies, including, the railway administration, who are held to be guilty of composite negligence or are joint tortfeasors.

7. It is further submitted that this Court, in Union of India v. Hareshbhai Tulsibhai Kanjiya 2004(3) GLH 742, has arrived at the same conclusion. Hence, the impugned order of the Tribunal deserves to be quashed and set aside and it may be directed that the Railways be joined in the claim petition, in order to arrive at a just decision.

8. Ms.Krishna Desai, learned advocate for Mr.V.C.Vaghela, learned advocate for respondents Nos.1 to 5, has supported the impugned order of the Tribunal and has submitted that the claim petition would not be maintainable before the Tribunal if the railway administration is joined as partyrespondent in the claim petition. In Page 5 of 16 C/SCA/15954/2006 JUDGMENT support of her submission, reliance has been placed upon a judgment of this Court in Ahmedabad Municipal Transport Service v. Manekben, Wd./o. Vithalbhai Damaji Chavda & Ors. 1981 GLR 575.

9. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

10. It would be relevant, at this stage, to refer to the judgment of the Supreme Court in Union of India v. Bhagwati Prasad (D) and others (supra), relied upon by the learned advocate for the petitioner. The relevant extract of the judgment is quoted hereinbelow:

"3. On account of the rapid development of road transport and increase in number of Motor Vehicles on the road the incidence of road accidents by Motor Vehicles having increased enormously the Motor Vehicles Act enacted by the Parliament was amended and the provisions were inserted for payment of compensation in certain cases of accidents without proof or fault or negligence on the Page 6 of 16 C/SCA/15954/2006 JUDGMENT part of the driver of the vehicle. The claim for compensation in respect of the accidents involving death or bodily injury to persons arising out of the use of Motor Vehicles as well as the insurance of the Motor Vehicles against the third party risk and the liability of the insurer are contained in Chapter VIII of the Motor Vehicles Act. The State Government has been empowered under Section 110(1) of the Act to constitute one or more Motor Vehicles Accidents Claim Tribunals by notification in the Official Gazette. Section 110A provides for filing an application for compensation and Section 110B is the power of the Claims Tribunal to pass an award on receiving an application for compensation made under sub section (A) of S.110. The procedure and powers of the Claims Tribunal are enumerated in Section 110C of the Act. It is not necessary for adjudicating the point in issue to examine and notice any other provision of the Act. In the case of Union of India vs. United India Insurance Company (supra) applications for compensation had been filed either by the injured passengers or the dependent of the deceased passengers travelling in the illfated Motor Vehicle both against the insurer of the Motor Vehicle as well as against the Railway Administration and one of the contention which had been raised before this Court by the Railway Administration was whether a claim for compensation would at all be maintainable before the Tribunal against other persons or Page 7 of 16 C/SCA/15954/2006 JUDGMENT agencies which are held to be guilty of composite negligence or are joint tortfeasors, and if the same arose out of the use of the Motor Vehicle. On consideration of different provisions of the Motor Vehicles Act this Court ultimately came to hold that, "We hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tortfeasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the Railways if its negligence in relation to the same accident was also proved."

The Court also came to hold that the views expressed by Gauhati, Orissa, and Madras High Courts to the effect that no award can be passed against others except the owner/driver or insurer of the motor vehicle are not correct, and on the other hand the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts to the effect that the claim lies before the Tribunal even against another joint tortfeasor connected with the same accident or against whom composite negligence is alleged. We are in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the Page 8 of 16 C/SCA/15954/2006 JUDGMENT sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/ owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with for which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd.(supra) that a claim for compensation Page 9 of 16 C/SCA/15954/2006 JUDGMENT on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Ss. 110, 110A, which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in subsection (1) of S.110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible Page 10 of 16 C/SCA/15954/2006 JUDGMENT and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in S. 110A read with sub section (1) of S.110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the Page 11 of 16 C/SCA/15954/2006 JUDGMENT fact whether there had been any use of Motor Vehicle and once that is established the Tribunal's jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect "It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of S.110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided.""

(emphasis supplied)

11. This Court, in Union of India v. Hareshbhai Tulsibhai Kanjiya (supra), has held as below:

"6. From the aforesaid provisions of the said Act, it is crystal clear that whenever the application is preferred under Section 140 of the Motor Vehicles Act, 1988, Page 12 of 16 C/SCA/15954/2006 JUDGMENT and if the accident arises out of the use of the motor vehicle, always the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988, has got jurisdiction, powers and authority to decide the same. It is not necessary that if one of the vehicles is a train or railway or vehicle runs on fixed rail, the jurisdiction of the Motor Accident Claims Tribunal is ousted. On the contrary, on plain reading of Section 140 of the Motor Vehicles Act,1988, it is sufficient if an accident has arisen because of one of the vehicles is a motorvehicle, as defined in Section 2(28) of the Motor Vehicles Act, 1988."

12. As is clear from the principles of law enunciated by the Supreme Court and this Court in the abovequoted judgments, if, in the course of an enquiry, the Tribunal arrives at a finding that it is the other joint tortfeasor, connected with the accident (be it the Railways), who is responsible and not the owner or driver of the Motor Vehicle, then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. The Motor Accident Claims Tribunal would well be entitled to award compensation against the other joint tortfeasors, even if it Page 13 of 16 C/SCA/15954/2006 JUDGMENT is the Railways. In Union of India v. Bhagwati Prasad (D) and others (supra), the other joint tortfeasor was the railway administration. In the present case as well, the party proposed to be joined is the Railway Administration and the reason for its joining is that the accident took place at an unmanned railway crossing between the Maruti car in which the deceased was travelling and the Diesel Engine belonging to the Railways. In such a factual and legal scenario, the principles of law enunciated by the Supreme Court in the above judgment would be squarely applicable.

13. Insofar as the judgment cited by learned advocate for respondents Nos.1 to 5 in the case of Ahmedabad Municipal Transport Service v. Manekben, Wd./o. Vithalbhai Damaji Chavda & Ors. (supra) is concerned, the same would not be applicable at this stage as it pertains to the merits of the case before the Court, as to whether the driver of the bus or the railway engine was negligent, or not. That stage has not yet arrived in the present case.

Page 14 of 16

C/SCA/15954/2006 JUDGMENT

14. A perusal of the impugned order goes to show that the Tribunal has not considered the principles of law contained in the judgment in the case of Union of India v. Bhagwati Prasad (D) and others (supra) cited before it, though reported in a different journal, that is, 2002(3) GLR 1981 (wrongly mentioned as "Supreme Court Page No.1981" in the impugned order). The decision as to compensation to be awarded would necessarily depend on a finding as to who is guilty of culpable negligence. Considering the facts of the case, and as the accident took place at an unmanned railway crossing with the Maruti car and the Diesel Engine of the Railways, in the view of this Court, the reasoning given by the Tribunal in the impugned order, to the effect that it would not have jurisdiction to decide the claim petition if the Railway Administration is joined, cannot be accepted.

15. For the aforestated reasons, the following order is passed:

The impugned order dated 03.01.2006, passed below the application at Ex.29 in Motor Accident Claim Petition No.10 of 1998, is hereby quashed and set aside. The petitioner is Page 15 of 16 C/SCA/15954/2006 JUDGMENT permitted to join the Railways as party respondent to the claim petition. However, it is directed that the petitioner shall do the needful in the shortest possible time and the claim petition be decided by the Tribunal within a period of six months from the date of joining of the Railways.

16. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.

(SMT. ABHILASHA KUMARI, J.) sunil Page 16 of 16

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