The New India Assurance Co. Ltd. vs Bhagwan Singh & Ors.
2010 Latest Caselaw 2290 Del

  *                 IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Reserve: 23rd April, 2010
                                       Date of Order: 29th April , 2010
+       C.M. (M) No.846/2007
%
                                                         29.04.2010

        THE NEW INDIA ASSURANCE CO. LTD.        ..... Petitioner
                       Through: Mr. Ramesh Kumar, Advocate.

                             versus

        BAHGWAN SINGH & ORS.                 ..... Respondents
                     Through: Mr. B.K. Choudhary, Advocate for
                     R-1.


        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the
        judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?

JUDGMENT

By this petition, the petitioner has assailed an order of

learned Tribunal passed during execution of award, whereby the

Tribunal directed the petitioner to pay balance 50% of the

compensation and gave liberty to the petitioner to recover the

same from JD No. 1.

2. The brief facts relevant for the purpose of deciding this

petition are that on a claim petition under section 163-A of the

Motor Vehicle Act, 1988, the learned Tribunal passed an award on

7th January, 2005 holding that the accident arose out of the use of

CM(M) 846 of 2007 page 1 Of 6 two trucks bearing No WB-03-9426 & DL-IG-6071. Respondent No.

4, i.e. the petitioner herein, was insurer of truck No. DL-IG-6071.

There was no evidence on record that the other truck stood insured

on the date of accident. Respondent No. 1, who was the owner of

other truck, had not joined the proceedings. Under these

circumstances, the Tribunal held that the compensation awarded

by it shall be jointly and severely borne by Respondent No 1, 3 and

4. Respondent No. 2 was held not liable to pay compensation. The

Tribunal after holding that Respondent No. 1, 3 and 4 were jointly

& severely responsible to pay compensation, it directed that total

amount of compensation shall be paid in equal share by

Respondent No. 1 and 4. Respondent No. 4 paid its part of

compensation. An execution petition was preferred by the

claimant in respect of remaining 50% of the award against

Respondent No. 1, i.e., owner of the other truck. Since the

execution could not be effected against Respondent No. 1, an

application was made by the claimant that the decree be executed

against JD No. 4, i.e., the present petitioner. The Tribunal vide

order dated 17th April, 2007 allowed this application and directed

the petitioner to deposit remaining 50% of the award amount along

with interest, hence this petition.

3. The petitioner has assailed the order on the ground that

Tribunal having passed the award dated 7th January, 2005 directing

the Petitioner and Respondent No. 2 to deposit the award amount

CM(M) 846 of 2007 page 2 Of 6 equally, had become functus officio and had no power to review its

own judgment. It is also submitted that assuming that there was

any tort feasor, it was the driver of the offending Truck who caused

accident with Truck No. WB-03-9426 as per claim petition. Even

assuming (without admitting) that there were two joint tort feasors

then one of the tort feasors would have been the claimant himself

who was driving Truck No. DL-IG-6071. He could not have been

offender and the victim at the same time and therefore the

claimant was not liable to recover the amount. It was further

submitted that as per Section 147 of the Motor Vehicles Act, the

liability of the petitioner was to the extent of liability under the

Workmen's Compensation Act, 1923 with respect of claim of the

claimant who was driver of the Truck and sustained permanent

disability. The said liability was less than 50% of the compensation

deposited by the petitioner. So the petitioner cannot be asked to

deposit balance 50% of the compensation amount. Under any

circumstance, the Tribunal could not have asked to deposit the

remaining decreetal amount and to recover the same from the

Respondent no. 2, owner of the offending vehicle since the

petitioner had not insured the risk of the offending truck WB-03-

9426.

4. It is submitted by respondent counsel that under section 163-

A of M.V. Act, the Tribunal could not have gone into negligence

part. It is further submitted that the Tribunal had not reviewed the

CM(M) 846 of 2007 page 3 Of 6 award. The award itself shows that the liability to pay

compensation was joint and severe on Respondent No 1,3 and 4.

Once the Respondent No. 4 was held jointly and severely liable for

the entire amount, the same could be recovered from Respondent

No. 4 i.e. the present petitioner.

5. The scheme of section 163-A of M.V. Act is quite clear.

Section 163-A provides for award of compensation and liability of

insurer to pay compensation as indicated in the Second Schedule

notwithstanding anything contained in the Act or in any other law

for the time being in force or instrument having the force of law.

Section 163-A of M.V. Act makes the owner of the motor vehicle or

the authorized insurer absolutely liable to pay compensation in the

case of death or permanent disablement due to accident. The

Hon'ble Supreme Court in Deepal Girish Bhai Soni's case 2004 ACJ

934 (SC) held that section 163A was a self contained Code and the

liability could not depend upon or be subject to any other condition

or any other provisions of law. Therefore, the plea taken by the

petitioner that its liability was limited to compensation as would

have been paid under Workmen's Compensation Act, 1923 is not

tenable and the compensation payable by the petitioner has to be

in accordance with the provisions as laid down under section 163A

of M.V. Act.

6. The only other question which remains to be answered is that

whether the award passed holding three JDs jointly and severely

CM(M) 846 of 2007 page 4 Of 6 liable for the payment of compensation could be executed against

the insurance company solely with liberty given to the insurance

company to recover the 50% amount from the other JDs? I

consider that law on this issue is quite clear where a decree is

passed jointly and severely against different JDs, the entire

decreetal amount can be recovered from one of the JDs and the JD

from whom the amount is recovered has a liberty to recover the

share of other JDs from them. Merely because the Tribunal has

expressed its opinion that two group of JDs would be liable for 50%

of the award amount, would not change the nature of decree

passed by the Tribunal being a decree recoverable jointly and

severely against the JDs. The plea taken by the DH/petitioner that

this amounted to review of the award is not tenable.

7. In Om Wati Vs. Mohd. Din & Ors., 2002 ACJ 868, a Division

Bench of this Court held:

"Coming to the question of apportionment, it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30 per cent share of their awarded compensation in favour of the joint tortfeasors of the truck present before the court as they had failed to implead tortfeasors of the car as party respondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even if it was assumed that the drivers of the two vehicles contributed to the

CM(M) 846 of 2007 page 5 Of 6 accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their cases. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrongdoer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tortfeasors becomes both joint and several.

8. I, therefore, find no force in this petition. The petition is

hereby dismissed.

SHIV NARAYAN DHINGRA, J.

April 29, 2010
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CM(M) 846 of 2007                                                  page 6 Of 6