Gujarat High Court
The National Insurance Co. Ltd vs Jagrutiben Bhavarlal Shah on 13 March, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/17394/2022 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17394 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17402 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17760 of 2022
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THE NATIONAL INSURANCE CO. LTD.
Versus
JAGRUTIBEN BHAVARLAL SHAH
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Appearance:
MR GC MAZMUDAR(1193) for the Petitioner(s) No. 1
MR HG MAZMUDAR(1194) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/03/2023
COMMON ORAL ORDER
[1] By way of these applications, the challenge is given to the order dated 22.04.2021 passed by the Motor Accident Claims Tribunal (Main), Surat in MACP No.307 of 2021, MACP No.306 of 2021 and MACP No.305 of 2021, whereby the application of the Insurance Company at Ex.19 came to be rejected wherein the prayer has been made to join the Owner, Driver and Insurance Company to the offending vehicle Inova Car bearing No.GJ-05-JL-2103, as party respondents.
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C/SCA/17394/2022 ORDER DATED: 13/03/2023 [2] Referring to the case of Amarsi Jugabhai Driver Vs. Vijayaben Hemantlal Dhulia & Ors. reported in 1996 (3) GLR, 493, Mr.Mazmudar, learned advocate for the petitioner submitted that it would be always advisable to join the other tortfeasors in the claim petition so as to avoid ambiguities and multiplicity of the proceedings, and further would avoid the complexity of recovery of the liability, if at all fixed by the Tribunal.
2.1 While learned Tribunal rejecting the application has referred the judgment of Khenyei Vs. New India Assurance Company Ltd. & Ors. reported in (2015) 9 SCC 273 and observed that in case of composite negligence, the claimant cannot be compelled to sue a person against whom they do not seek any relief and the Insurance Company on record cannot insist on having the others being joined as opponents as the liability of tortfeasors involved, is joint and several.
[3] Mr.Paresh Darji, learned advocate appearing for the claimant has referred the judgment of Page 2 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023 C/SCA/17394/2022 ORDER DATED: 13/03/2023 Khenyei (supra) and supported the impugned order passed by the learned Tribunal. He is permitted to file his Vakaltnama.
[4] In the case of Amarsi (supra), the Division Bench of this Court has relied upon the reasons stated in the case of Hiraben Bhaga Vs. G.S.R.T. Corporation reported in 1982(1) GLR 190 by laying emphasis that when an application for joining a party is submitted by one of joint tortfeasors on record, such application should be allowed almost as a matter of rule and practice, and another joint tortfeasors should be joined as party Opponent. [5] Reliance has been placed in the case of New India Assurance Company Ltd. Vs. Muna Maya Basant W/o. Sher Bahadur Basant reported in (2001)1 GLR 915, the said case has also referred the case of Gujarat State Road Transport Corporation Vs. Gurunath Shahu reported in (1989) 1 GLR 581, wherein it has been held that when there are more one tortfeasors, technically a claim petition against one of the tortfeasors is not bad, but it is desirable that the Tribunal will not adopt the easy course which may Page 3 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023 C/SCA/17394/2022 ORDER DATED: 13/03/2023 quickly dispose of the matter. As such disposal gives rise to other litigations. Therefore, whenever a plea for joining another joint tortfeasors is raised and prayed for, it would be better for the Tribunal to insist that all the tortfeasors are brought on record. [6] In the case of Khenyel (supra), it was held by the Hon'ble Apex Court as under:
"What emerges from the aforesaid discussion is as follows:-
(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.
(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 Page 4 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023 C/SCA/17394/2022 ORDER DATED: 13/03/2023 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."Page 5 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023
C/SCA/17394/2022 ORDER DATED: 13/03/2023 [7] In the referred judgment of Khenyei (supra), it has been laid down that in case of composite negligence, the claimant is entitled to sue both or any one of the joint tortfeasors and can recover the entire compensation as liability of joint tortfeasors is jointly and severally. In that circumstances, it has been laid down that the apportionment of compensation between two tortfeasors vis a vis the claimant is not permissible. However, in case, when the joint tortfeasors have been impleaded and evidence is sufficient, it had been made open to the Tribunal to determine inter se extent of composite negligence of the drivers, and that determination of the extent of negligence between the joint tortfeasors is for the purpose of laying down the inter se liability of the joint tortfeasor so as to enable them to recover the amount from the others in a execution petition.
[8] Keeping in mind the aforesaid facts and relying upon the observations made in the case of Amarsi (supra), it would be always advisable for the Page 6 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023 C/SCA/17394/2022 ORDER DATED: 13/03/2023 Tribunal to join the other tortfeasors and when an application has been moved by the claimant or by the torfeasors on record, such an application should be allowed as a matter of rule and practice as in future, there would not be any resistance from the other side on the principle of res-judicata, and further, non entertaining such application would lead to multiplicity of the proceedings.
[9] Thus, in view of the above, these applications are allowed. The order dated 22.04.2021 passed by the Motor Accident Claims Tribunal (Main), Surat in MACP No.307 of 2021, MACP No.306 of 2021 and MACP No.305 of 2021 is hereby quashed and set aside. The Petitioner - Insurance Company is permitted to join the referred party of Exhibit 19 in MACP No.307 of 2021, MACP No.306 of 2021 and MACP No.305 of 2021.
Direct service is permitted.
(GITA GOPI,J) MANOJ Page 7 of 7 Downloaded on : Wed Mar 15 20:39:42 IST 2023