Bombay High Court
Bajaj Allianz General Insurance ... vs Vitthal Rangnath Apare And Others on 3 August, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3819 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1.
Sangeeta Tukaram Gund
Age - 42 years, Occ - Household
RESPONDENTS
2. Adinath Tukaram Gund,
Age - 40 years, Occ - Agriculture
R/o Kairi Nimgaon,
Taluka - Shrirampur, District - Ahmednagar
3. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
4. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.3820 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
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Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1. Shaikh Nazama Mustaq Shaikh RESPONDENTS
Age - 41 years, Occ - Household
2. Shaikh Salim Mustaq Shaikh,
Age - 25 years, Occ - Kettering Work
3. Shaikh Moin Mustaq Shaikh,
Age - 22 years, Occ - Nil
All R/o At present Kazibaba Road,
Shrirampur, Taluka - Shrirampur
District - Ahmednagar
4. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
5. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.3865 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
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1. Bhimabai Pandharinath Wagh RESPONDENTS
Age - 60 years, Occ - Agriculture
R/o Khaire Nimgaon,
Taluka - Shrirampur, District - Ahmednagar
2. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
3. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.3945 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1. Sangeeta Tukaram Gund RESPONDENTS
Age - 42 years, Occ - Household
2. Adinath Tukaram Gund,
Age - 40 years, Occ - Agriculture
R/o Kairi Nimgaon,
Taluka - Shrirampur, District - Ahmednagar
3. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
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P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
4. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.4314 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1. Muktabai Mahadeo Lahare RESPONDENTS
Age - 43 years, Occ - Agriculture
2. Bapu Mahadeo Lahare,
Age - 30 years, Occ - Agriculture
3. Shankar Mahadeo Lahare
Age - 23 years, Occ - Education
4. Bandu Mahadeo Lahare
Age - 20 years, Occ - Education
All R/o At present Khokar,
Taluka - Shrirampur, District - Ahmednagar
5. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
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6. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.4315 OF 2016
Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1. Vitthal Rangnath Apare RESPONDENTS
Age - 48 years, Occ - Labour
2. Alka Vitthal Apare,
Age - 39 years, Occ - Household
Both R/o At present Ashirwad Nagar, Shrirampur
Taluka - Shrirampur, District - Ahmednagar
3. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
4. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
WITH
WRIT PETITION NO.4316 OF 2016
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Bajaj Allianz General Insurance Co. Ltd., PETITIONER
Branch office at G. E. Plaza,
Airport Road, Yerwada, Pune,
Through it's Authorized Signatory /
Branch Manager,
Rajendra Chambers, Next to LIC Building,
Adalat Road, Aurangabad
VERSUS
1. Sonyabapu Vishwanath Gunjal RESPONDENTS
Age - 70 years, Occ - Agriculture
2. Babasaheb Sonyabapu Gunjal,
Age - 49 years, Occ - Police
3. Keshav Sonyabapu Gunjal,
Age - 45 years, Occ - Service
All At present R/o Gunjalwadi, Belapur,
Taluka - Shrirampur, District - Ahmednagar
4. Md. Jannat N. Hussain,
Age - Major, Occ - Business,
R/o 50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
5. Ramdarshan Dhari Chhan Yadab
Age - Major, Occ - Driver
R/o C/o Md. Jannat N. Hussain,
50, Kurmarpara, Kamarhti,
P. S. Belghira, District - 24 North Pargana
Kolkatta - 58
.......
Mr. Mr.S.G.Chapalgaonkar, Advocate for petitioner
Mr. V. S. Bedre, Advocate for respondent - claimants
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 3rd AUGUST, 2016
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the appearing parties.
2. Learned advocate for the petitioner submits that from the
accident - collision between a stationary truck and a plying
private luxury coach (bus) in the year 2000 which had taken
place in Kolkata (West Bengal), about sixteen claim petitions
have been filed. The claimants were residents of Ahmednagar
and Shrirampur. As such, eight Motor Accident Claim Petitions
were filed in Ahmednagar and eight at Shrirampur. In the claim
petitions filed at Ahmednagar, owner, driver and the insurance
companies of both the vehicles (joint tort feasors) were made
party respondents, whereas in the claim petitions at Shrirampur
owner, driver and insurance company of only private luxury
coach (bus) have been made party.
3. Learned advocate submits that in view of aforesaid, it
would be fair, reasonable and facilitating that all the joint tort
feasors are before the Tribunal at Shrirampur as in the case of
claim petitions at Ahmednagar. He fairly refers to that such a
movement under applications before, in a few claim petitions at
Shrirampur, at the instance of the present petitioner, had not
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produced desired result, as its applications stood rejected under
orders of the claims tribunal at Shrirampur.
4. He fairly further states that the in law, as it appears to
stand hitherto, it may not be authoritatively said that all the joint
tort feasors should be before the tribunal and further refers to
that the courts have often observed that in case liability is
discharged by one of the joint tort feasors, such a joint tort
feasor may have a right of action against the other joint tort
feasors.
5. Even this being so, according to him, looking at the facts
and circumstances, as those are involved in present matters,
particularly that, one of the claim petitions at Ahmednagar has
been decided, wherein liabilities on the joint tort feasors have
been apportioned in proportion to negligence of the vehicles
adjudged under the claim petitions, and in such a case, the
claimants or for that matter one joint tort feasor would be able
to lay claim against the other, without requiring to undergo
further proceedings for recovery against such joint tort feasor
reducing, according to him, and even avoiding consumption of
time, labour and expenses.
6. He refers and purports to rely on a judgment in case of
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"Khenyei V/s New India Assurance Company Limited and Others" reported in
(2015) 9 SCC 273 focusing on head note "B" which reads asunder;
" B. Tort Law - Contribution - Joint tortfeasors - Inter se liability -
modes available for settlement of - Composite negligence of more than
one person (excluding victim / claimant) cause of accident - Remedies
available to one of the joint tortfeasors from whom (entire)
compensation recovered by claimant - He can sue non-impleaded joint
tortfeasores in independent proceeding for recovery of contribution to
the extent of their negligence - If, however, all joint tortfesores are
before court / Tribunal and sufficient evidence available, it may
determine extent of their negligence for purpose of adjusting inter se
liability so as to enable one to recover sum from the other (s) in
execution proceedings in the main case - Motor Vehicles Act, 1988, Ss.
166, 168 and 170 "
7. He, in view of aforesaid, submits that in such a case, in
present matters, the claimants are not likely to suffer any
prejudice to their claims. In the circumstances, having regard to
position as it stands in law, the petitioner would benefit from
avoidable multiplicity of litigation on finding of liability on
composite negligence and apportionment which would not be
possible in the absence of other joint tort feasors.
8. He further purports to focus on the observations of the
Supreme Court as are occurring in paragraph No.22.3, which
according to him would cause prejudice to none, rather would
facilitate a proper decision making, reducing multiplicity of
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proceedings. Observations of the Supreme Court in paragraph
No.22.3 are reproduced hereinbelow:
"22.3 In case all the joint tortfeasors 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 tortfeasors is only for the purpose
of their inter se liability so that one may recover the sum from the other
after making whole of the 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 the main case one joint tortfeasor
can recover the amount from the other in the execution proceedings."
9. Mr. Bedre, learned advocate appearing for respondent -
claimants, however, resists the request being made under the
writ petitions. He submits that the arguments being advanced on
behalf of the petitioner may be quite impressive, however, in the
wake of events and the factual situation, as obtaining in the
present matters, they carry very little substance. Learned
advocate points out that earlier effort in this respect having
failed and not having been immediately challenged, the request
having been made for the very same purpose after evidence on
all sides had been closed, is inappropriate and away from
propriety. He submits that while the claimants are hoping for
immediate bearing of fruits of the litigation, if the request is
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considered, in all probability there would be consumption of time
and delay, when it is not an absolute necessity, and delay and
consumption of time may cause grave prejudice to claimants. He
further submits that it is not the case that doors for claiming
shared liability of joint tort feasors are closed on the petitioner.
The Supreme Court has observed that in case of liability having
been discharged under a claim petition, it is open for one joint
tort feasor to proceed against the other for apportionment of the
liability to be discharged under the claims. Having regard to
aforesaid, he submits that the stage at which the request has
been made is not a proper stage, since the proceedings have
advanced to its last lap.
10. After having heard learned advocates for the parties and
on perusal of impugned order, it appears that the matter is in the
realm of discretion of the motor accident claims tribunal and has
been decided accordingly. The considerations, which have
weighed with the tribunal, stage in the proceedings, the legal
position and for want of absolute necessity, the tribunal in its
discretion has not considered it to be expedient to issue
directions as requested under the application, and has rejected
under the impugned order.
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11. Having regard to submissions, the position of law, as
obtaining and as has been fairly pointed out by learned
advocates, stage in the matter and the exercise of discretion not
being improper or not being in breach of any judicial principles,
despite pursuasive arguments advanced on behalf of the
petitioner, this may not be case wherein interference at this
juncture, would be called for in the writ petitions. Writ petitions,
accordingly, are dismissed. Rule stands discharged.
12.
Needless to refer to that aforesaid observations are for the
purpose of decision in the writ petitions and would not carry
efficacy any further.
[SUNIL P. DESHMUKH, J.]
drp/wp3819-16
