Smt. Savita Srivastava And Others vs Vinod Kumar Trivedi And Others
2023 Latest Caselaw 21371 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:161245
 
Court No. - 44
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1254 of 2004
 
Appellant :- Smt. Savita Srivastava And Others
 
Respondent :- Vinod Kumar Trivedi And Others
 
Counsel for Appellant :- A.K. Pandey,Nikhil Chaturvedi,Satya Deo Ojha
 
Counsel for Respondent :- Sanjay Singh,Amit Singh
 
And 
 
Case :- FIRST APPEAL FROM ORDER No. - 1257 of 2004
 
Appellant :- Ashutosh Srivastava And Others
 
Respondent :- Vinod Kumar Trivedi And Others
 
Counsel for Appellant :- A.K. Pandey,Nikhil Chaturvedi,Satya Deo Ojha
 
Counsel for Respondent :- Amit Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. By way of these appeals, the appellant-claimants have challenged the judgment and order dated 4.2.2004 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 4, Fatehpur whereby the Tribunal has rejected the claim petitions being No. 19 of 1998 & 33 of 1998 preferred by the claimants.

2. Heard learned counsel for the parties and perused the record.

3. Could the claim petition be dismissed on the sole ground that the driver of the Maruti Van involved in the accident was not produced? The driver of the truck was also not called. It is for the Tribunal to decide the issue of the negligence of preponderance. The fact go to show that the deceased were not the tortfeasors. Even if the Tribunal held that the Maruti Van driver was tortfeasor, this short cut could not have been adopted by the Tribunal to dismiss the claim petitions. On this short ground, the judgment is required to be set aside.

4. In view of the above, both the appeals are allowed. Record be sent back to the Tribunal forthwith. It would be prudent for the claimants to join the owner of the Maruti Van who is told to be still alive and the Insurance Company, if any, within eight weeks from today. However, that would not be fatal to the claimant as decisions in Josphine James vs. United India Insurance Company, 2013 0 Supreme (SC) 741 and Khenyei vs. New India Assurance Co. Ltd. & Others , relied by the counsel for the appellants, are very clear that the claimants who are the non tortfeasor can claim from any of the tortfeasors as for them this is the case of composite negligence.

5. The Tribunal shall decide issue of negligence and compensation within 12 weeks from today as there is no breach of policy on the part of truck owner or the driver. The issue of negligence and issue of compensation is to be decided by the Tribunal in view of the decisions in Sunita and others Vs. Rajasthan State Road Transport Corporation and Another, 2019 LawSuit (SC) 190, Mangla Ram Vs. Oriental Insurance Company Limited and Others, 2018 (5) SCC 656 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186.

Order Date :- 9.8.2023

DKS