Gujarat High Court
The United India Insurance Co. Ltd vs Shilpaben Hitesh Kanchva on 8 June, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/9269/2023 ORDER DATED: 08/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9269 of 2023
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THE UNITED INDIA INSURANCE CO. LTD.
Versus
SHILPABEN HITESH KANCHVA
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Appearance:
MR RATHIN P RAVAL(5013) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7,8
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/06/2023
ORAL ORDER
1. Learned advocate Mr. Rathin P. Raval appearing for the petitioner submits that the challenge has been given to an order dated 20.03.2023 passed below Exh. 17 in Motor Accident Claim Petition No. 113 of 2021 by the learned Motor Accident Claims Tribunal, Jamnagar where the prayer was made by the Insurance Company for joining the owner of other offending vehicle, which was involved in the accident as a necessary and proper party for determination of the claim petition. It was stated that the proposed party is a tort-feasor and is required to be brought on record.
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C/SCA/9269/2023 ORDER DATED: 08/06/2023 2. Reliance was placed in the case of New India
Assurance Company Limited v. Ayar Sakhiben Jivaben, 2018 (0) AIJEL-HC 24063 and in the case of Gujarat State Road Transport Corporation v. Gurunath Shahu, rendered in First Appeal No. 427 of 1988.
2.1 The learned advocate for the petitioner, in view of decision in Khenyei v. New India Assurance Company Ltd. & Ors., (2015) 9 SCC 273, submits that the learned Tribunal would be required to determine the extent of negligence between the joint tort-feasors so that the inter se liability can be determined and either would be in a better position to recover the sum from the other in accordance with the order passed by the learned Tribunal in the concerned matter. He further submits that in the decision in Ayar Sakhiben Jivaben (supra), it is held that whenever a plea is raised for joining another tort-feasor, it would be in the interest of justice and for just decision, the Tribunal should allow the application as a matter of rule and practice and should order the joining of other tort-feasor as a party to the matter.
3. It appears that the learned Tribunal, while rejecting the Page 2 of 6 Downloaded on : Fri Jun 09 20:44:50 IST 2023 C/SCA/9269/2023 ORDER DATED: 08/06/2023 application, has noted that at the time of accident, deceased Hitesh Punjaji was travelling in Truck No. GJ-27-T-8047 as a Cleaner and accident was occurred with vehicle Truck No. HR- 56-A-9402. The Tribunal was of the view that, "the petitioner is the master of his case and he can join the parties as per his wish unless and until the party is necessary party. In the present matter, owner and driver of vehicle Truck No. GJ-27-T- 8047 is not necessary party and only a proper party and present claim petition can be decided in absence of that party". Thus, the learned Tribunal has concluded that the respondents cannot force the petitioner to join the other parties only for the purpose to reduce its liability on the ground of negligence. There is no denial to that observation of the learned Tribunal but as has been laid down in the case of Ayar Sakhiben Jivaben (supra) while relying upon the decision in the case of Gujarat State Road Transport Corporation (supra) and even the in the case of Lalabhai Mavjibhai Parmar v. Raval Natvarbhai Melabhai, referring to the Division Bench judgment of this Court, whenever a plea for joining another tort-feasor is raised and prayed for, it would be better for the Tribunal to insist that all the joint tort-feasor be brought on record and when an application for joining party is Page 3 of 6 Downloaded on : Fri Jun 09 20:44:50 IST 2023 C/SCA/9269/2023 ORDER DATED: 08/06/2023 submitted by a tort-feasor on record, the said application is to be allowed almost as a matter of rule and practice and another joint tort-feasor will have to be joined as party opponent.
4. In the case of Lalabhai Mavjibhai Parmar v. Raval Natvarbhai Melabhai (supra), this Court, vide order dated 09.03.2016, considering the decision rendered by the Hon'ble Supreme Court in the case of Khenyei (supra), it is observed in Paragraph-4 as under:
"4. Therefore, prima facie, there is no substance in the petition, in as much as, the law is well settled that though compensation can be awarded in absence of all tort feasors more particularly, when there is no composite negligence between two tort feasors and when there is no evidence regarding negligence of applicant, when one of the tort feasor has brought to the notice of the Court that it would be appropriate to join other tort feasor there is nothing in the law, which restricts the Court to refuse to join such tort feasor. It is also claimed that though there is inter se negligence of both the tort fessers, it would be appropriate to have their presence before the Court so as to fix their liability to avoid multiplicity of proceedings. Therefore, there is difference between the issue related to negligence either composite or contributory so far as claimants are concerned as against presence of necessary party in any such claim petition."
5. It is true that in case of composite negligence the claimant has right to choose the party - respondent, as the Page 4 of 6 Downloaded on : Fri Jun 09 20:44:50 IST 2023 C/SCA/9269/2023 ORDER DATED: 08/06/2023 composite negligence refers to negligence on the part of two or more persons and claimant would thus be in his own right to exercise the option of recovering the monies from any of the tort-feasors. In case of composite negligence as has been held in case of Khenyei (supra), the claimant is entitled to sue one or both joint tort-feasors jointly and severely in case of composite negligence, apportionment of compensation between two tort-feasors vis-a-vis the claimant is not permissible as the claimant can recover at his option whole damages from any of them. However, where it has been brought on record and to the notice of the Court by one of the tort-feasors to implead the other offending tort-feasor as a party then it would become necessary for the Tribunal as rule and practice to join the other tort-feasor since the negligence would thereafter, have to be determined and the inter se liability get fixed so as to enable the other tort-feasor to recover the sum of money from the other after making whole of the payment to the claimant to the extent and to satisfy the liability of the others, taking this proposition of law, it would be just for the tribunal to allow the application of the other joint tort-feasors making a prayer to join the other offending vehicle so that inter se liability could be decided by the Court and the Page 5 of 6 Downloaded on : Fri Jun 09 20:44:50 IST 2023 C/SCA/9269/2023 ORDER DATED: 08/06/2023 result, the tort-feasor would have an option to recover the money, if at all, is deposited in context of the amount paid to the claimant, who exercises the option to recover this compensation amount from any of the tort-feasors.
6. In view of the reason given herein above, the order dated 20.03.2023 passed below Exh. 17 in Motor Accident Claim Petition No. 113 of 2021 by the learned Motor Accident Claims Tribunal, Jamnagar is hereby quashed and set aside and the prayer made for joining party in accordance with Exh. 17 is allowed and accordingly the party as prayed for, be made party respondent in the claim petition.
6.1 With aforesaid, the petition is disposed of.
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