Gujarat High Court
Legal Heirs Of Deceased Karna Bhai ... vs Owner Of Chakdo Rickshaw No. ... on 5 February, 2025
NEUTRAL CITATION
C/FA/1714/2010 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1714 of 2010
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LEGAL HEIRS OF DECEASED KARNA BHAI RAJSIBHAI & ORS.
Versus
OWNER OF CHAKDO RICKSHAW NO. GJ-11-V-3106 & ORS.
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1,2,3,4
MR NITAL M DHRUVE(3693) for the Defendant(s) No. 1
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants being aggrieved and dissatisfied with the judgment and award dated 14.7.2008 passed by the Motor Accident Claims Tribunal, Jamnagar in Motor Accident Claim Petition No.84 of 2006.
2. In this case, deceased Karnabhai was sitting in Chakdo rickshaw at the relevant time and one unknown driver has dashed Chakdo rickshaw and in said accident, the deceased received injuries and later on died.
3. An application was moved by the legal heirs of the deceased u/s 166 of the MV Act against the driver, owner and insurer of the Chakdo rickshaw. The learned Tribunal for no reason, assessed the inter se negligency of two vehicle involved Page 1 of 4 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:31:13 IST 2025 NEUTRAL CITATION C/FA/1714/2010 ORDER DATED: 05/02/2025 undefined in the road accident in absence of driver, owner and insurer of the other vehicle. An error of the learned Tribunal is visible. The learned Tribunal failed to understand the issue of composite negligency as well as contributory negligency. In case of composite negligency, the claimant has option to file claim petition against any of the wrongdoer. The claimants have filed the claim petition against the driver, owner and insurer of Chakdo rickshaw. It is no one's case that Chakdo rickshaw was not involved in the road accident. Yet, the learned Tribunal overstepped its jurisdiction and decided that Chakdo rickshaw driver is not negligent in causing the road accident and therefore, the claimants are not entitled to claim compensation from the driver, owner and insurer of the Chakdo rickshaw. The learned Tribunal perhaps also lost sight to the concept of use o motor vehicle stated in section 165 of the MV Act.
4 The Hon'ble Apex Court in case of Khenyei Versus New India Assurance Company Limited, 2015 (9) SCC 273, reiterating earlier judgment in case of Pawan Kumar & Anr. V/s. Harkishan Dass Mohan Lal & Ors., 2014 3 SCC 590, summarized the issue as under:-
"18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, Page 2 of 4 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:31:13 IST 2025 NEUTRAL CITATION C/FA/1714/2010 ORDER DATED: 05/02/2025 undefined there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-
truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor- truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
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 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 Page 3 of 4 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:31:13 IST 2025 NEUTRAL CITATION C/FA/1714/2010 ORDER DATED: 05/02/2025 undefined 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."
4.1 In view of above, the learned Tribunal was required to assess just and fair compensation.
5. In wake of above, present First Appeal is allowed and impugned judgment and award is quashed and set aside. MACP No. 84 of 2006 is restored to its original proceedings.
5.1 The learned Tribunal is directed to issue notice to the claimant as well as to the respondents and to proceed further to decide the petition on its own merits without being influenced by its earlier order, as early as possible, preferably within six months from the date of receipt of this order.
5.2 Both the parties are at liberty to lead fresh evidence, if they so desire.
5.3 Parties shall remain present before the learned Tribunal on 12.3.2025.
5.4 R & P, if any, to be sent back to the concerned Court immediately preferably on or before 12.3.2025.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 4 of 4 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:31:13 IST 2025