C/FA/2989/2022 ORDER DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2989 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 2989 of 2022
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
In
R/FIRST APPEAL NO. 2989 of 2022
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ORIENTAL INSURANCE COMPANY LIMITED
Versus
KALPESH VINUBHAI CHAUHAN
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Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/02/2023
ORAL ORDER
1. The Insurance Company is before this Court challenging judgment and award dated 10.06.2019 passed by learned Motor Accident Claims Tribunal (Main), Junagadh in MACP No.259 of 2012.
2. It is the contention that the learned Tribunal has erred in attributing 15% contributory negligence to the motorcyclist and has failed to appreciate the fact that the FIR was against the driver of Jeep, who was solely negligent for the accident and that the learned Tribunal has failed to pass any direction for "pay and Page 1 of 4 Downloaded on : Wed Feb 22 20:58:23 IST 2023 C/FA/2989/2022 ORDER DATED: 22/02/2023 recover" of 85% liability of the joint tortfeasor, if it is at all paid by the Insurance Company, which should be in accordance to the directions of the Hon'ble Apex Court in case of Khenyei Vs. New India Assurance Company Limited & Ors., reported in (2015) 9 SCC, 273.
3. The case does not require any admission since in case of Khenyei (supra), the Hon'ble Apex Court has held that the victim /claimant is entitled to sue any of the joint tortfeasors or all of them for recovery of entire amount of compensation. The extent of liability of each of them separately is neither required to be established by victim /claimant nor required to be determined by the Court /Tribunal for the purpose of payment of compensation.
4. In the present case the Insurance Company is aggrieved by the fact that the Tribunal has apportioned the negligence, however, has not passed any direction for recovery of the same from other tortfeasors.
5. Learned Advocate Ms.Rahevar has contended that 85% negligence has been attributed to the driver of jeep bearing No.GJ- 08-D-8576, but the owner of the jeep was not joined as party respondent in the Claim Petition. Hence, the Insurance Company of the other vehicle-Hero Honda motorcycle, i.e. the present appellant would be required to deposit the whole of the Page 2 of 4 Downloaded on : Wed Feb 22 20:58:23 IST 2023 C/FA/2989/2022 ORDER DATED: 22/02/2023 compensation amount, though share of the compensation would be only 15%. Hence, it is submitted that necessary directions were required to be passed by the learned Tribunal so as to see that no loss is sustained by the appellant-Insurance Company, though no larger liability has been laid down on the offending vehicle which is insured with the appellant.
6. In case of Khenyei (supra), the Hon'ble Apex Court has laid down that in case of composite negligence of more than one person (excluding victim /claimant) to the cause of accident, remedy is available to one of the joint tortfeasors from whom entire compensation could be recovered by the claimant. He can sue non- impleaded joint tortfeasors in independent proceeding for recovery of contribution to the extent of their negligence. The Hon'ble Apex Court has made it further clear that if all joint tortfeasors are before the Court /Tribunal and sufficient evidence is available, it may determine the extent of their negligence for the purpose of adjusting inter se liability so as to enable one to recover sum from the other in execution proceeding in the main case.
7. Here in the impugned judgment and order, the learned Tribunal has already apportioned extent of liability of both the involved vehicles The present appellant-Insurance Company would have recourse to recover the amount from jeep driver who had been made party to the matter. Hence, the appellant-Insurance Page 3 of 4 Downloaded on : Wed Feb 22 20:58:23 IST 2023 C/FA/2989/2022 ORDER DATED: 22/02/2023 Company can recover the amount by filing Execution Petition against driver of jeep, who was made party opponent No.1 before in MACP No.259 of 2012. Thus, this Court does not find any reason to admit the First Appeal as recourse is available to the appellant- Insurance Company to file Execution Petition for recovering the money from the driver of jeep.
8. Accordingly, the First Appeal stands disposed of with the aforesaid direction.
9. In view of the order passed in the main First Appeal, Civil Applications do nor survive. The same stand disposed of accordingly.
(GITA GOPI,J) SHITOLE Page 4 of 4 Downloaded on : Wed Feb 22 20:58:23 IST 2023