Punjab-Haryana High Court
The Oriental Insurance Company Limited vs Smt. Meena Kumari And Others on 24 August, 2010
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.4246 of 2006
Date of decision:24.08.2010
The Oriental Insurance Company Limited ....Appellant
versus
Smt. Meena Kumari and others ...Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate,
for the appellant.
Mr. Brijender Kaushik, Advocate, for respondents 1 to 6.
Mr.Raj Kumar Rana, Advocate, for respondent No.7.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J. (Oral)
1. The Insurance Company is in appeal challenging the award passed in a petition filed for compensation under Section 163-A by the representatives of the deceased, who was a pillion rider in the insurer's scooter. The accident is said to have arisen by a collision with a Cielo car when the scooterist and the pillion rider fell from the vehicle and a Maxi cab drove over the person causing the death. According to him, the case could not have been prosecuted without making the owners of the Cielo car and the Maxi cab which had ultimately caused the death of the person.
FAO No.4246 of 2006 -2-
2. The learned counsel refers to a decision of this Court in Bhajan Lal Bishnoi Versus Rajasthan State Road Transport Corporation-1991 ACJ 651, where the Bench of this Court held that the joint tort feasors were necessary parties and if yet another vehicle, who had caused the accident, was not added, the other joint tort feasors would not be liable. I find from the judgment that the case did not go as far as to say that the petition itself was not maintainable but it found that the claim cannot survive against a person, who was not added as a party. This decision answers therefore only one issue of how much money could be recovered from a person, who had not been wholly responsible for the accident but responsible only to and whose liability ought to be apportioned with yet another tort feasor. There have been several decisions after the decision of the Bench of this Court where the consistent string of authorities is even in a cases of composite negligence, it is unnecessary for a claimant to implead all the joint tort feasors. Matter of apportionment amongst the tort feasors ought not to be the concern of the claimant. It shall be appropriately worked out when anyone among tort feasors makes a claim for contribution against other members who are involved in the accident. This has been considered by a decision of this Court itself in a subsequent decision in Oriental Insurance Company Limited Versus Narinder Kaur-2001(1) 127 PLR 138. It is just not a one-off decision of this Court but that has also been the preponderance of approach on every other High Court. To wit, please see, Divisional Manager, Oriental Insurance Company Limited Versus Jasoda Mohanta-AIR 1996 Orissa 120; Uttar Pradesh FAO No.4246 of 2006 -3- State Road Transport Corporation Versus Rajani-2007 ACJ 1771 (Allahabad); Shaik Ali Sahel Versus K. Rajashree-2007 (1) TAC 581 (AP); TNSTC Versus Isappiappa-2007(1) TN MAC 527; Gujarat State Road Transport Corporation Versus Union of India-AIR 1988 Guj. 13 and United India Fire and General Insurance Company Limited Versus Varghese-1989 (2) AccCC 483 (Ker.). The law does not require any further exposition than how it has been considered in every part of the country. It will be too late in the day to urge for a proposition which is untenable.
3. If the claim by the claimants against the insurer of the vehicle which under the terms of the policy was bound to satisfy the claim of a pillion rider, it will enquire no more than to see (i) whether the terms of the policy cast a liability and (ii) whether the death or injury had been caused by the result of the use of a motor vehicle. I am not prepared to consider the apportionment of liability of the Cielo car and Maxi Cab in their absence for any finding regarding apportionment in their absence will not bind them. It will be open to the insurer to satisfy the claim and sue for contribution against the other vehicles and the respective insurers, if it is so advised.
4. The award is confirmed and the appeal is dismissed. ` (K.KANNAN) JUDGE 24.08.2010 sanjeev