Gujarat High Court
Heirs Of Mehabhai Ranabhai Parjapati vs Kulweer Singh Trilikchan Singh on 18 September, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/15518/2023 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15518 of 2023
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HEIRS OF MEHABHAI RANABHAI PARJAPATI
Versus
KULWEER SINGH TRILIKCHAN SINGH
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Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/09/2023
ORAL ORDER
1. By way of this petition, a prayer is made to quash and set aside the order dated 03.08.2023 passed by the learned 5th Additional Sessions Judge, Tharad at Banaskantha in M.A.C.M.A. No.65 of 2021, and prayed for further order in the interest of justice.
2. Heard learned Advocates for the petitioners Mr. Vishal C. Mehta, who submits that in the Claim Petition, the aspect of composite negligence was raised where the deceased was travelling in a Trailer No.PB-13-R-8691 attached with Tractor No.GJ-8-13- 3534 and the accident occurred between the above Trailer and the Trolley No.GJ-8-X-2424. It is further Page 1 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined submitted that the learned Motor Accident Claims Tribunal (Aux.), Banaskantha at Tharad in M.A.C.P. No.421 of 2018 had in Issue No.2, Paragraph 11 of the judgment and award, laid the liability to pay the compensation and held that the claimants are entitled to a total compensation of Rs.8,76,400/- from the opponents, jointly and severally.
3. The words 'jointly and severally' under Issue No.2, it has been specifically expressed whereas while framing the issues, in the said Issue No.2 the Tribunal has framed the same as under :-
'Whether the applicant / applicants are entitled to get the compensation? If yes, who is responsible for paying the compensation and the expense?'
4. Learned Advocate Mr. Vishal C. Mehta stated that the operative part of the order is inconsistent to the observation made in the reasoning to issue No.2, where the Tribunal has committed an omission to add that aspect mandated by law.
5. Learned Advocate for the petitioners has placed reliance on the decision of the Hon'ble Apex Court in Page 2 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined the case of Khenyei v. New India Assurance Company Limited reported in 2015 (9) SCC 273 to submit that the Hon'ble Apex Court has observed that incase of composite negligence, the claimant is entitled to recover from any of the joint tortfeasors. It is further submitted that incase of composite negligence, the apportionment of compensation between the tort feasor vis-a-viz the claimant is not permissible and claimant can recover the same from any of them; inspite of this proposition of law, the learned Tribunal has omitted to include the entitlement of recovery of compensation jointly and severally in the operative part of the order. Since, the omission in the operative portion of the order does not corroborate with the observations made in the judgment, hence, an application under Section 152 of the Civil Procedure Code, 1908 (hereinafter referred to in short as 'CPC') was moved before the learned Tribunal as M.A.C.M.A. No.65 of 2021.
6. The M.A.C.M.A. No.65 of 2021 came to be rejected on 03.08.2023 observing that though the learned Predecessor of the learned Tribunal has held in the main part of the judgment that the compensation Page 3 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined may be recovered from the opponents jointly and severally but in the order part, it is clearly mentioned that the opponents No.2 and 3 are jointly and severally liable to pay 80% of the total amount of compensation and opponents No.4 to 6 are jointly and severally liable to pay 20% amount of the total compensation. It was further observed that from the perusal of the judgment and award, there appeared to be no accidental slip, clerical or arithmetical mistake or omission. It was also observed that if the petitioners had any grievance, then they could file an application for review but instead the petitioners had filed an application under Section 152 of the CPC, which as per the Judge was not maintainable.
7. Learned Advocate for the petitioners submitted that it is not a case of Review since the Review Application would be valid only if a person is aggrieved by the judgment and award. It is submitted that Order 47 Rule 1 of the CPC shows that review of a judgment or an order could be sought when two conditions are satisfied :-
(a) the discovery of new and important matters or Page 4 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined evidence which after the exercise of due diligence was not within the knowledge of the applicant;
(b) such important matter or evidence could not be produced by the applicant.
8. It is further submitted that the application which was moved before the Court was M.A.C.M.A. No.65 of 2021 was because of omission in the operative order, since it was not consistent with the observations made in the judgment and award and there was no any new ground to be added under the cause of any discovery of new and important matter or evidence which could not be brought to the notice of the learned Tribunal before passing of the judgment and award. It is also submitted that the Review could be prayed if there has been an error on the side of the claimants which is reflected on the face of the record or for any sufficient reason which had been a failure from the side of the claimant himself, while it is not the case. The error has been brought to notice of the learned Tribunal, was only in the operative portion when the learned Tribunal had permitted the claimant/s to recover the compensation amount, jointly and severally from the opponents under the Page 5 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined reason of the issue. Apportionment of the liability made in the operative order is not consistent with the observations made and therefore, submitted that if at all such apportionment of the liability is to be believed, then it would be an apportionment of the negligence aspect which the learned Tribunal could declare in the operative portion as per the decision in the case of Khenyei (supra), but the recovery of the amount in the case of composite negligence is always jointly and severally for the claimant/s and thus, it is an omission of the learned Tribunal which could be corrected only under Section 152 of the CPC.
9. In the case of Khenyei (supra), after deliberations on various judgments, the position which has emerged has been conclusively laid down as under :-
"(i) 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.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.Page 6 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023
NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined
(iii) 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.
(iv) 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 tort feasor in independent proceedings after passing of the decree or award."
10. The decision of Khenyei (supra) clarifies that the claimant is entitled to sue both or any of the joint tortfeasors to recover the entire compensation and there would not be any apportionment of the compensation between the tortfeasors vis-a-viz the Page 7 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined claimant. However, if at all the joint tortfeasors are impleaded, and evidence is provided to fix the inter- se composite negligence, the determination to the extent of negligence is permissible and that is to facilitate the joint tortfeasors for the recovery of the amount. It is an obvious case of omission from the side of the learned Tribunal as the entitlement of the recovery of compensation amount is jointly and severally which was already observed in the reasoning under Issue No.2.
11. In view of the above, this petition succeeds. The operative portion of the order Paragraph 2 dated 09.01.2020 passed by the learned Motor Accident Claims Tribunal (Aux.), Banaskantha at Tharad in M.A.C.P. No.421 of 2018 be replaced and be read as under :-
"The applicants are entitled to recover the total amount of Rs.8,76,400/- from the opponents jointly and severally with running interest @ 8% per annum from the date of claim petition till payment alongwith proportionate cost of the petition; the joint tortfeasors can thus recover the amount from the other tortfeasor in the ratio of 80% of the compensation amount, liable from Page 8 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023 NEUTRAL CITATION C/SCA/15518/2023 ORDER DATED: 18/09/2023 undefined the opponents No.2 and 3, and 20% of the compensation amount, liable from the opponents No.4 to 6."
12. In view of the above, the order dated 03.08.2023 passed by the learned 5th Additional Sessions Judge, Tharad at Banaskantha in M.A.C.M.A. No.65 of 2021 stands quashed and set aside. Direct Service is permitted.
Sd/-
(GITA GOPI, J) CAROLINE Page 9 of 9 Downloaded on : Thu Sep 21 20:38:15 IST 2023