I.C.I.C.I. Lombard General ... vs Reba Saha & Ors
2023 Latest Caselaw 6230 Cal

18.09. 2023
item No.4
n.b.
ct. no. 551         FMA 2008 of 2013
    with
    CAN 3 of 2016(Old No. CAN 1872 of 2016)
    +
    CAN 4 of 2023

                   I.C.I.C.I. Lombard General Insurance Co. Ltd.
                                 Vs.
                           Reba Saha & ors.

              Mr. Sayank Majunder,
                              .....for the appellant.
              Mr. S. Dutta,
              Md. M. Kalam,
                              .... For the added respondent.

Mr. Saidur Rahaman,l ... for the respondent.

Supplementary affidavit filed on behalf of the added

respondent Santu Das is taken on record.

The instant appeal has been preferred against the

judgment dated December 14, 2012 passed by the learned

Judge, Motor Accident Claims Tribunal, 2 nd Court,

Jalpaiguri in M.A.C Case No.37 of 2009.

The brief fact the case is that the present

respondent/claimant has preferred an application under

Section 166 of M.V. Act before the learned Tribunal for

getting compensation on the ground that their predecessor

was died in a road traffic accident due the rash and

negligent driving of the driver of the offending vehicle. The

nature of the accident as stated in the claim application as

follows:

On 13.11.2008 at about 11.30 hours while the

deceased along with goods in the vehicle bearing no.WB-

73/9371(Mini Door) was proceeding towards Jhankar.

Suddenly, EICHER Truck bearing no. WB 73/6738 with

rash and negligent driving dashed the Mini Door and

victim sustained severe injuries and died. The Tribunal

has proceeded with this case, and after hearing the

parties, the learned Tribunal has awarded a sum of

Rs.12,22,161/- in favour of the claimants towards the

compensation. The present appellant being the insurer of

the EICHER truck is directed to pay the compensation.

The Insurance Company i.e. the insurer of the EICHER

truck has preferred an appeal on the ground that

the EICHER truck was not solely liable for the accident.

Learned advocate for the Insurance Company has

placed the FIR, seizure list and charge sheet of police case

being Siliguri P.S. case No.373 of 2008 dated 13.8.2008

arising out of the said accident.

It appears from the FIR of the said police case that

the said FIR has lodged by the ASI of police, Siliguir, P.S.

The FIR discloses the involvement of both the EICHER

truck and the Mini door of the said accident. It has been

stated in the FIR that both the vehicle were running

dangerously at the time of accident. The final report of the

police was submitted wherein it is reflected that both the

driver of the vehicles were responsible as they were driving

the vehicle dangerously and carelessly. Charge sheet has

been submitted against both the drivers.

On citing such materials, learned advocate for the

Insurance Company submits that the I.C.I.C.I. Lombard

General Insurance Co. Ltd. i.e the insurer of the EICHER

truck is not solely responsible to pay the compensation.

During the pendency of the instant appeal notice was

served upon the owner of the Mini Door. The owner,

namely, Santu Das was represented with a supplementary

affidavit. On perusal of the supplementary affidavit, it

appears that the Mini Door was transferred to another

person namely, Gokul Das before the date of accident.

However, in such affidavit, he made a further statement

that he is not a party of the instant appeal that the vehicle

i.e. Mini Door is also involved in the said accident. The

supplementary affidavit appears to be as contrary to the

stand of the so-called early owner of the Mini Door being

No. WB 73/9371(Mini Door).

Learned advocate for the Insurance Company cited

the observation of the Hon'ble Supreme Court passed in

Khenyei Vs. New India Assurance Co. Ltd. reported in

(2015) 9 SCC 273. The Hon'ble Supreme Court has

guided a specific principle in respect of composite

negligence Paragraph 22.1 to 22.4 of the said citation is

quoted below.

"22.1. In the case of composite negligence, the

plaintiff/claimant is entitled to sue both or any one of the

joint tortfeasors and to recover the entire compensation as

liability of joint tortfeasors in joint and several.

22.2 In the case of composite negligence,

apportionment of compensation between two tortfeasors

vis-a-vis the plaintiff/claimant is not permissible. He can

recover at his option whole damages from any of them.

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.

22.4 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 fortfeasors. In such a case, impleaded

joint tortfeasor should be left, in case he so

desires, to sue the other joint tortfeasor in

independent proceedings after passing of he

decree or award".

In considering the entire appeal and memo thereof

and in considering the materials, it appears to me that the

argument of the learned advocate appearing on behalf of

the I.C.I.C.I. Lombard General Insurance Co. has

substance. Police paper which was exhibited before the

learned Tribunal has specifically mentioned the

involvement of both the vehicles in the said accident.

Consequently, both the vehicles are the joint tortfeasors

and both of them are jointly liable to pay the

compensation.

By virtue of observation of the Hon'ble Supreme

Court in Khenyei(Supra) the present respondent being

the claimants shall not be harassed to received the

compensation. It is the specific decision of the Hon'ble

Supreme Court that the percentage of negligence cannot

be determined by a Tribunal or the Appellate Court

thereof. So, the extent of liability is to be determined by

any other forum in a separate proceeding. At this

juncture, the I.C.I.C.I. Lombard General Insurance

Co./appellant is at liberty to prefer a specific

proceeding/suit before the appropriate Court to recover

the portion of compensation. The appellant is at liberty to

use the supplementary affidavit filed by the added

respondent before this Court in the said proceeding.

Considering the entire aspect, the appeal is hereby

disposed of.

It appears that the Insurance Company has already

deposited the entire awarded amount with the office of the

Learned Registrar General, High Court, Calcutta. The

present respondent being the respondent nos. 1,2,3 are

entitled to get the entire sum of money as deposited by the

Insurance Company. It further appears that the

claimants has already receive 50% of the awarded amount

from the office of Registrar General, High Court, Calcutta

by the order of this Court, on the earlier occasion. The

claimants are at liberty to receive the rest deposit amount

along with accrued interest if any, from the office of the

Learned Registrar General, High Court, Calcutta.

The appeal is disposed of with a liberty to the

appellant/Insurance Company, that they may prefer

separate application/proceeding/suit before the

appropriate forum to recover the portion of the

compensation from the owner/occupier/insurer of the

other offending vehicle(Mini Door) being no. WB 73/9371,

the extent of which shall be determined by that forum.

Accordingly, the FMA 2008 of 2013 is disposed.

Connected applications, if any, are also disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)