Bombay High Court
S.B.I. General Insurance Co. Ltd. ... vs Sonali W/O Ravindra Ulmale And ... on 29 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3179 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Sau. Sonali w/o Ravindra Ulmale and Ors.
WITH
WRIT PETITION NO. 3180 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Sau. Vanita w/o Pradip Hulke and Ors.
WITH
WRIT PETITION NO. 3181 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Nishant s/o Yadav Deulkar and Ors.
WITH
WRIT PETITION NO. 3182 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Sau. Sharda w/o Raju Kakade and Ors.
WITH
WRIT PETITION NO. 3183 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Sau. Asha w/o Hiralal Deulkar and Ors.
WITH
WRIT PETITION NO. 3184 OF 2021
S.B.I. General Insurance Co. Ltd.
Vs.
Ku. Shrutika d/o Sanjay Dhoke and Ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. D.N. Kukday, Advocate for Petitioner in all petitions
Mr. S.M. Bahirwar, Advocate for Respondent No.4 in all petitions
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CORAM : MANISH PITALE, J.
RESERVED ON : 29/03/2022
PRONOUNCED ON: 29/04/2022
These writ petitions filed by an insurance company
raise a common point in the context of applications moved by
the petitioner - insurance company in claim petitions arising
out of the same incident, whereby a prayer was made for
adding the owner-cum-driver, as also the insurance company of
one of the vehicles involved in an accident, as parties to the
claim petitions. Identical applications moved in the claim
petitions have been rejected by the Motor Accident Claims
Tribunal, giving identical reasons. According to the insurance
company, the Tribunal erred in rejecting the applications as the
claim petitions pertained to an accident involving composite
negligence.
2. The facts leading up to filing of these writ petitions are
that students of a particular school travelling in a Tata Magic
vehicle tragically died when the said vehicle met with an
accident with a truck. Some students also suffered serious
injuries and claim petitions were filed in the context of the said
incident. In all the claim petitions, the owner, driver and the
petitioner - insurance company, concerning the truck were
made parties. During the pendency of the claim petitions,
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charge-sheet came to be filed in the criminal proceedings that
arose out of the said incident. In the said charge-sheet, charges
were levelled not only against the driver of the truck, but also
against the driver of the Tata Magic vehicle in which the
students were travelling. This was because, in the investigation
it was found that while the truck was driven on the wrong side
of the road at high speed, the driver of the Tata Magic vehicle
was also driving at high speed while talking on mobile phone.
Accordingly, drivers of both the vehicles stood charge-sheeted.
3. In this backdrop, the petitioner - insurance company
filed applications under Order 1 Rule 10 of the Code of Civil
Procedure before the Tribunal in all the claim petitions,
praying for addition of the driver-cum-owner of Tata Magic
vehicle and its insurer, if any, as parties in the claim petitions.
The Tribunal considered the said applications filed in the
pending claim petitions and passed the impugned orders,
rejecting the applications on the ground that as per settled law,
when a case of composite negligence comes up for
consideration, it is the choice of the claimant to join one or
both tortfeasors, as parties in the claim petition. On this basis,
it was held that no case was made out for addition of the driver-
cum-owner and insurer, if any, of the Tata Magic vehicle, as
parties to the claim petitions.
4. Aggrieved by the same, the petitioner - insurance
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company filed the present writ petitions, wherein notices were
issued. While the other respondents appeared through counsel,
the claimants did not appear before this Court despite service.
5. Mr. D.N. Kukday, learned counsel appearing for the
petitioner - insurance company in all the writ petitions
submitted that a perusal of the provisions of the Motor Vehicles
Act, 1988, would show that it was only before the Tribunal that
the question of determination of compensation, as also liability
to pay compensation could be determined. Attention of this
Court was invited to Sections 165, 168 and 175 of the aforesaid
Act to contend that only the Tribunal had exclusive jurisdiction
to decide the aforesaid aspects in claim petitions and that there
was a bar on the jurisdiction of the Civil Courts. It was
submitted that the Tribunal under the provisions of the said
Act was required to determine the quantum of compensation
and the extent of liability of the parties involved in the incident
and hence, it was necessary to join the driver-cum-owner and
insurer, if any, of the Tata Magic vehicle, as parties in the claim
petitions for a comprehensive resolution of the dispute
involved.
6. The learned counsel appearing for the petitioner -
insurance company relied upon judgment of Division Bench of
the Gujarat High Court in the case of Gujarat State Road
Transport Corporation Vs. Gurunath Shahu and others
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reported in 1990(1) Civil LJ 548, wherein it was held that
whenever a plea for joining another joint tortfeasor was raised
and prayed for before the Tribunal, such application ought to
be allowed as a rule, so that all the joint tortfeasors are before
the Tribunal in the claim petition. It was submitted that this
would prevent multiplicity of litigation, because even if the
claimant could maintain the claim petition as against only one
of the joint tortfeasors, the subsequent proceeding for recovery
of proportionate amount of liability against other tortfeasors
would be avoided if all the joint tortfeasors are before the
Tribunal. By referring to the Full Bench judgment of the
Karnataka High Court in the case Ganesh Vs. Syed Munned
Ahamed & Ors. reported in II (1999) ACC 9 (FB) and the
judgment of the Hon'ble Supreme Court in the case of Khenyei
Vs. New India Assurance Company Ltd. 2016(2) Mh.L.J.514,
the learned counsel for the petitioner - insurance company
submitted that even though it was held that independent
proceedings could be initiated by the joint tortfeasor, who is
party before the Tribunal, for recovery against other joint
tortfeasors who are not made parties, perhaps the bar under
Section 175 of the Act was not brought to the notice of the
Court when the said judgment was rendered.
7. It was submitted that when there was a clear bar on
jurisdiction of Civil Courts, under Section 175 of the aforesaid
Act, the petitioner - insurance company as the only joint
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tortfeasor before the Tribunal, would not be able to invoke
jurisdiction even of the Civil Courts for recovery of
proportionate liability of the other joint tortfeasors i.e. the
driver-cum-owner and insurer, if any, of the Tata Magic
vehicle. It was submitted that in a case of composite
negligence, it would be necessary that all the joint tortfeasors
are made parties in claim petitions so that future complications
are avoided. On this basis, it was submitted that the present
petitions deserved to be allowed.
8. As noted above, none appeared on behalf of the
claimants despite service.
9. Mr. Bahirwar, learned counsel appearing on behalf of
the owner of the truck submitted that this Court may pass
appropriate orders in the light of the position of law laid down
by the Hon'ble Supreme Court in the cases concerning
composite negligence.
10. In order to examine the correctness or otherwise of the
impugned orders passed by the Tribunal, it would be necessary
to examine the position of law as regards who needs to be
impleaded as necessary party when cases of composite
negligence come up for consideration before the Tribunal. The
distinction between composite negligence and contributory
negligence is very clear, for the reason that in contributory
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negligence, the facts demonstrate that if the claimant was partly
responsible for the incident in question, the extent of liability
of the owner / driver / insurance company of the offending
vehicle would be reduced in proportion to the negligence of
the claimant. But, a case of composite negligence concerns a
situation where a person suffers in an accident, which is the
outcome of combination of negligence of two or more other
persons. In the present case, undisputedly the victims suffered
due to the accident that occurred between the Tata Magic
vehicle and the truck, wherein the victims had not contributed
at all. In such a situation, the question is, as to whether all the
joint tortfeasors are necessarily required to be added as parties
in a claim petition before the Tribunal.
11. In order to examine the said question, it would be
necessary to refer to the relevant provisions of the aforesaid
Act. These include Sections 165, 168 and 175 of the said Act.
The said provisions read as follows:
"165. Claims Tribunals. -- (1) A State
Government may, by notification in the Official
Gazette, constitute one or more Motor Accidents
Claims Tribunals (hereafter in this Chapter referred
to as Claims Tribunal) for such area as may be
specified in the notification for the purpose of
adjudicating upon claims for compensation in respect
of accidents involving the death of, or bodily injury
to, persons arising out of the use of motor vehicles, or
damages to any property of a third party so arising, or
both.
Explanation.-- For the removal of doubts, it is
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hereby declared that the expression "claims for
compensation in respect of accidents involving the
death of or bodily injury to persons arising out of the
use of motor vehicles" includes claims for
compensation under section 140 1[and section 164].
(2) A Claims Tribunal shall consist of such number
of members as the State Government may think fit to
appoint and where it consists of two or more
members, one of them shall be appointed as the
Chairman thereof.
(3) A person shall not be qualified for appointment
as a member of a Claims Tribunal unless he --
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of a High
Court 2[or as a District Judge].
(4) Where two or more Claims Tribunals are
constituted for any area, the State Government, may
by general or special order, regulate the distribution
of business among them.
168. Award of the Claims Tribunal.-- (1)
On receipt of an application for compensation made
under section 166, the Claims Tribunal shall, after
giving notice of the application to the insurer and
after giving the parties (including the insurer) an
opportunity of being heard, hold an inquiry into the
claim or, as the case may be, each of the claims and,
subject to the provisions of 1[section 163] may make
an award determining the amount of compensation
which appears to it to be just and specifying the
person or persons to whom compensation shall be
paid and in making the award the Claims Tribunal
shall specify the amount which shall be paid by the
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insurer or owner or driver of the vehicle involved in
the accident or by all or any of them, as the case may
be:
[***]
(2) The Claims Tribunal shall arrange to deliver
copies of the award to the parties concerned
expeditiously and in any case within a period of
fifteen days from the date of the award.
(3) When an award is made under this section, the
person who is required to pay any amount in terms of
such award shall, within thirty days of the date of
announcing the award by the Claims Tribunal,
deposit the entire amount awarded in such manner as
the Claims Tribunal may direct.
175. Bar on jurisdiction of Civil Courts. --
Where any Claims Tribunal has been constituted for
any area, no Civil Court shall have jurisdiction to
entertain any question relating to any claim for
compensation which may be adjudicated upon by the
Claims Tribunal for that area, and no injunction in
respect of any action taken or to be taken by or
before the Claims Tribunal in respect of the claim for
compensation shall be granted by the Civil Court."
12. As per Section 165 of the aforesaid Act, the Claim
Tribunals have been established for the purpose of adjudicating
upon claims for compensation in respect of accidents arising
out of use of motor vehicles. As per Section 168 of the said
Act, the Tribunals are supposed to make Awards determining
the amount of compensation and specify the persons to whom
the said compensation shall be paid and further to specify the
amount to be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of them.
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Section 175 of the said Act bars jurisdiction of the Civil Courts
to entertain any question relating to any claim for
compensation, which may be adjudicated by the Tribunal for
that area. A perusal of the objects and reasons for enactment of
the aforesaid Act would show that, inter-alia, it has been
enacted for determination of and for payment of compensation
to the extent of actual liability, to the victims of motor
accidents.
13. Thus, emphasis in the said Act is on jurisdiction of the
Tribunal to determine the quantum of compensation payable
and to identify the persons to whom such compensation is
payable. It is also incumbent upon the Tribunal to fasten
liability on the insurer, owner or driver of the vehicle. The bar
on jurisdiction of Civil Courts is limited to entertaining any
question relating to any claim for compensation, which may be
adjudicated by the Tribunal. In cases involving composite
negligence, the Courts have had occasion to deliberate upon
the question as to whether all the joint tortfeasors involved in
the incident are to be made parties to claim petitions, for
adjudication of the quantum of compensation payable to the
claimants.
14. This question has been considered and answered in a
series of judgments. In the case of Khenyei Vs. New India
Assurance Company Ltd. (supra), the Hon'ble Supreme Court
had an occasion to refer to earlier judgments of the Supreme
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Courts and High Courts on the said question concerning
composite negligence, including the situation faced by the
Tribunal when only one of the joint tortfeasors is added as
party. In the said judgment, the Supreme Court referred to
observations in commentaries on law of torts, including the
commentaries of Winfield and Jolowicz, as also Pollock on law
of torts. The Supreme Court also referred to earlier precedents
on the approach to be adopted by the Courts, concerning cases
of composite negligence, including judgments of the Andhra
Pradesh High Court, Madras High Court, Gujarat High Court,
Karnataka High Court and Madhya Pradesh High Court, as
also earlier judgments of the Supreme Court. In the said
judgment in the case of Khenyei Vs. New India Assurance
Company Ltd. (supra), the views of the Full Benches of the
Karnataka and Madhya Pradesh High Courts were approved
and after referring to judgments of the Supreme Court in the
cases of T.O. Anthony Vs. Karvarnan and Ors. 2008(3) SCC
748; Pawan Kumar and another Vs. Harkishan Dass Mohan
Lal and others 2014(3) SCC 590; Machindranath Kernath
Kasar Vs. D.S. Challa Mylarappa and others 2008(13) SCC
198; National Insurance Co. Ltd. Vs. Challa Bharathamma and
others 2004(8) SCC 517 and Oriental Insurance Co. Ltd. Vs.
Nanjappan and others 2004(13) SCC 224, it was held 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
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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 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."
15. The position of law authoritatively laid down by the
Bench of three Hon'ble Judges of the Supreme Court in the
aforesaid case of Khenyei Vs. New India Assurance Company
Ltd. (supra), makes it very clear that the claimants can file the
claim petitions in a case of composite negligence, only against
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one of the joint tortfeasors and that the Tribunal can also
proceed to decide the same in the absence of other joint
tortfeasors. In such a situation, the joint tortfeasor, who is a
party before the Tribunal, has liberty to sue the other joint
tortfeasor in independent proceedings after passing of the
Award. In the face of the aforesaid position of law laid down
by the Supreme Court, the contentions raised on behalf of the
petitioner - insurance company cannot to be accepted.
16. It was sought to be urged on behalf of the petitioner -
insurance company that perhaps the true effect of Section 175
of the Act and bar contained therein was not brought to the
notice of the Supreme Court. But, this Court is of the opinion
that the bar on jurisdiction of Civil Courts contained in the said
Act is limited to the question relating to claim of compensation
to be exclusively adjudicated by the Tribunal. The said bar on
jurisdiction of Civil Courts can have no application when a
joint tortfeasor intends to sue or initiate proceedings against
another joint tortfeasor, upon determination of compensation
by the Tribunal. The series of precedents referred to and
approved by the Supreme Court in the aforesaid judgment in
the case of Khenyei Vs. New India Assurance Company Ltd.
(supra), makes this position very clear. The emphasis placed on
Section 168 of the said Act on behalf of the petitioner -
insurance company is also misplaced because the Award of the
Tribunal is for determining the amount of compensation and
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identification of the persons to whom it is payable. In the said
provision, it is also stipulated that the Tribunal while making
the Award shall specify the amount which shall be paid by the
insurer or owner or driver of the vehicle involved in the
accident or by any or all of them. The use of words insurer,
owner and driver of the vehicle involved in the accident in the
singular, rather than the plural, further indicates that it would
be enough in a case of composite negligence for the claimants
to join only one of the joint tortfeasors as parties to the claim
petition.
17. A perusal of Section 165 of the said Act also shows
that the Tribunals have been established for the purpose of
adjudicating upon claims for compensation in respect of
accidents arising out of the use of motor vehicles. These
provisions, when read conjointly with the objects and reasons
of the said Act, make it clear that the purpose of establishing
the Tribunals is to determine the compensation payable to the
claimants at the earliest after the incident in question.
Therefore, there is no substance in the contention raised on
behalf of the petitioner - insurance company that the true
extent of the bar on jurisdiction of Civil Courts under Section
175 of the said Act was not brought to the notice of the
Supreme Court when the judgment in the case of Khenyei Vs.
New India Assurance Company Ltd. (supra), was rendered.
18. As regards reliance placed on the judgment of the
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Division Bench of Gujarat High Court in the case of Gujarat
State Road Transport Corporation Vs. Gurunath Shahu and
others (supra), even in the said judgment the Division Bench of
the Gujarat High Court has held that the Tribunal was correct
in holding that the claim petition could go on as long as one of
the joint tortfeasors was party. It was only as a matter of
practicality that in the said judgment a view was taken that if a
plea is made for joining all the tortfeasors as parties, the
Tribunal would be advised to do so for practical reasons so that
seeds for future litigation are not sowed. But, as noted above,
the aforesaid judgment rendered by three Hon'ble Judges of the
Supreme Court in the case of Khenyei Vs. New India
Assurance Company Ltd. (supra), has authoritatively held, after
taking into consideration earlier precedents, that it would be
for the claimants to decide about joining joint tortfeasors as
parties before the Tribunal in claim petitions concerning
composite negligence and that the claim petition could
certainly go ahead as against only one of the joint tortfeasors
made party before the Tribunal. This clearly indicates that the
contention of the petitioner - insurance company before this
Court that its applications ought to have been allowed by the
Tribunal on the ground that the driver-cum-owner and insurer,
if any, of the Tata Magic vehicle were necessary parties, cannot
be sustained. Hence, it becomes clear that no interference is
warranted in the impugned orders passed by the Tribunal. In
fact, considering the admitted position that the claim petitions
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were instituted as far back as in the year 2016, it would be
better that the proceedings before the Tribunal are expedited,
so that the claims of the claimants, arising out of the
unfortunate incident of deaths and serious injuries caused to
students are decided on merits at the earliest.
19. In view of the above, the writ petitions are found to be
without any merit and accordingly they are dismissed. The
Tribunal is directed to expedite the proceedings in the pending
claim petitions.
JUDGE
MP Deshpande
Digitally signed by:MILIND
P DESHPANDE
Signing Date:29.04.2022
17:06
