Gujarat High Court
Tusharkumar Ranjitbhai Baria vs Bhuneshvar Shiv Pandit on 23 March, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/FA/1248/2020 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1248 of 2020
With
R/FIRST APPEAL NO. 1249 of 2020
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TUSHARKUMAR RANJITBHAI BARIA
Versus
BHUNESHVAR SHIV PANDIT
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/03/2023
ORAL ORDER
1. Both the MACPs being MACP No.545/2015 and MACP No.546/2015 impugned in both the appeals, came to be dismissed on 03.01.2019 by Motor Accident Claims Tribunal (Aux.), Godhra. MACP No.546/2015 was filed by minor, who was a pillion rider, while MACP No.545/2015 was raised by the driver of the motorcycle No. GJ-17-AA- 6635.
2. Against the judgment of dismissal of both the MACPs, the present appeals have been raised being Page 1 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023 C/FA/1248/2020 ORDER DATED: 23/03/2023 aggrieved and dissatisfied by the dismissal.
3. Mr.Nishit A.Bhalodi, learned advocate for the appellant, referring to the observations made in both the judgments, submitted that the claimant of MACP No.546/2015 was a pillion rider, hence, it would be a case of composite negligence, since the vehicles involved were Motorcycle No. GJ-17-AA-6635 and Motorcycle No. GJ-17- AC-1677. Mr. Bhalodi submits that the pillion rider and the claimant of MACP No.545/2015 sustained injury because of the accident.
3.1 Mr. Bhalodi submitted that the learned Tribunal was required to decide the negligence aspect in the matter, and only observing the fact that the claimant of MACP No.545/2015 has admitted that he was not holding a driving license, since was minor at the time of accident, the learned Tribunal came to the conclusion, in view of the decision of the Tribunal in MACP No.545/2015, that opponent no.1, who is driver and Page 2 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023 C/FA/1248/2020 ORDER DATED: 23/03/2023 owner of Motorcycle No.GJ-17-AC-1677 cannot be considered negligent for the occurrence of the accident. 3.2 Mr. Bhalodi submitted that learned Tribunal has failed to even consider the negligence aspect even for the pillion rider for whom, as per the judgment of Khenyei Vs. New India Assurance Company Ltd., reported in (2015) 9 Supreme Court Cases 273, the learned Tribunal was required to decide the composite negligence factor.
3.3 In MACP No.545/2015, it is argued by Mr. Bhalodi that the claimant himself has deposed about the negligence aspect, merely, not holding a license would not suggest the fact that the claimant himself was negligent for the accident, when there has been no rebuttal evidence produced by the driver and owner of Motorcycle No. GJ-17-AC-1677, where the evidence of the claimant himself was on record showing the negligence of the driver and owner of the Motorcycle No. GJ-17-AC- 1677.
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C/FA/1248/2020 ORDER DATED: 23/03/2023
4. While Mr. Vibhuti Nanavati, learned advocate for the Insurance Company submitted that the learned Tribunal has recorded the fact that the claimant of MACP No.545/2015, as was a minor, was not holding any driving license, and thus was solely negligent for the accident, and, thus would be liable to pay the compensation.
5. Having heard learned advocate for both the sides. It is to be noted that in the case of Khenyei Vs. New India Assurance Company Ltd. (supra), it has been laid down in paragraph 22 to 22.4 as under:
"22. What emerges from the aforesaid discussion is as follows :
22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the Page 4 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023 C/FA/1248/2020 ORDER DATED: 23/03/2023 plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
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 tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint Page 5 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023 C/FA/1248/2020 ORDER DATED: 23/03/2023 tort feasor in independent proceedings after passing of the decree or award.
6. For the pillion rider, it is a case of composite negligence, hence, as the claimant would be entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several, and in that circumstances, apportionment of compensation between two joint tort feasors is not permissible. But, in a case, where both the tort feasors have been impleaded and evidence is sufficient on record, then it becomes necessary for the Tribunal to determine inter se composite negligence of the drivers, and such determination would be necessary for the purpose of recovery of the sum from otherside.
7. Thus, in view of the observation made in the case of Khenyei Vs. New India Assurance Company Ltd. (supra), the learned Tribunal was required to determine the negligence of the drivers of the vehicles, and for the pillion rider, by following the case of Khenyei Vs. New Page 6 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023 C/FA/1248/2020 ORDER DATED: 23/03/2023 India Assurance Company Ltd. (supra), it would not be incumbent upon the claimant to join both the tort feasors. Hence, the claimant can recover the compensation amount from any of the tort feasors.
8. In the result, both the appeals are allowed. The judgments and awards dated 03.01.2019 passed in MACP No.546/2015 and MACP No.545/2015 by the Motor Accident Claims Tribunal (Aux.) Godhra are quashed and set aside and the matter is ordered to be remanded back to the concerned Tribunal with direction that the Tribunal may decide the negligence aspect as well as quantum after allowing both the sides to adduce evidence on record. Let this exercise be completed within a period of 6 months. All the issues are kept open for the Tribunal to decide the same in accordance to the evidence on record.
9. Record and Proceedings, if any, be sent back to the concerned Tribunal forthwith.
(GITA GOPI,J) Pankaj Page 7 of 7 Downloaded on : Fri Mar 24 20:46:29 IST 2023