Allahabad High Court
U.P.State Road Transport Corporation ... vs Prem Narain Verma And Another on 24 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 18 Case :- FIRST APPEAL FROM ORDER No. - 255 of 2014 Appellant :- U.P.State Road Transport Corporation Thru Its Station Master Respondent :- Prem Narain Verma And Another Counsel for Appellant :- Prabhu Ranjan Tripathi Counsel for Respondent :- Ashutosh Nandan,Kapil Dev Chaubey,Vijai Kumar Shukla Hon'ble Attau Rahman Masoodi,J.
Heard Sri Prabhu Ranjan Tripathi, learned counsel for the appellant and Sri Vijay Kumar Shukla, learned counsel who has put in appearance on behalf of the claimant i.e. opposite party no. 1.
Opposite party no. 2 is a proforma party for he is the driver of the bus belonging to the appellant, a public undertaking. Moreover, opposite party no. 2 is stated to have died. The death of opposite party no. 2 who was a proforma party does not affect the survival of cause or otherwise in his place require any substitution.
Challenge to the impugned award is solely on the aspect of fixing the liability of entire payment of compensation upon the appellant.
Learned counsel for the appellant has argued that once a finding of composite negligence was recorded by the Tribunal on the basis of evidence available on record, the Tribunal ought to have apportioned the liability equally and fixed for payment upon the appellant vis-a-vis the insurer of the truck or the owner.
Per contra, learned counsel for the respondent-claimant has argued that once the quantum of compensation quantified by the Tribunal is not the subject matter of challenge in the present appeal, the appellant in view of the judgement reported in (2015) 9 SCC 273 (Khenyei v. New India Assurance Company Ltd. and others), have an opportunity of instituting independent proceedings for recovery against the insurer or owner of the other vehicle on the principle of joint tortfeasor. This proposition is spelt out in para 22.4 of the judgement (supra) which reads as under:
"22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."
Admittedly, the bus belonging to UPSRTC (appellant) and the truck bearing number UP25 T 8719 met with a head-on collision, therefore, a case of composite negligence does seem to be a situation in the case at hand.
This Court having regard to the law laid down by the apex court in the judgement (supra) is of the considered opinion that the appellant has a right of recovery against joint torfeasors who are not a party to the claim petition. It is, therefore, open to the appellant to initiate independent proceedings against the joint tortfeasors known, if any. Interference in the order assailed before this Court on the ground urged is, however, uncalled for. The appellant has not argued any other point.
The appeal preferred by the appellant essentially for a relief against a non party to the present proceedings is not maintainable and cannot be entertained.
The appeal is, therefore, rejected.
Order Date :- 24.1.2020 Fahim/-