Delhi High Court
Iffco Tokio General Insurance Co. ... vs Smt Shimlesh & Ors. on 2 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 2nd March, 2012
+ CM (M) 263/2012
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
..... Petitioner
Through: Ms. Suman Bagga, Advocate
versus
SMT SHIMLESH & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
C.M.APPL.3956/2012
Exemption allowed subject to all just exceptions.
Application stands disposed of
CM (M) 263/2012
1. The Petitioner IFFCO Tokio General Insurance Co. Ltd.
impugns the order dated 15.10.2011 passed by the Motor
Accident Claims Tribunal (the Claims Tribunal) whereby an
application under Order 1 Rule 10 read with Section 151 CPC
for impleading driver, owner and Insurer of the bus No.DL-
1PA-2904 (the bus) was dismissed. In the application, the
Petitioner took the plea that the accident was caused on account
of rash and negligent driving of the bus and dumper bearing
No.UP-04D-8568 (the dumper); the first Respondent, however
filed the Claim Petition only against the driver, owner and
Insurer of the dumper and did not implead the driver, owner and
Insurer of the bus. It was stated that since the bus was also
involved in the accident, its driver, owner and Insurer were
equally liable to pay the compensation.
2. Respondents No.1 to 7 contested the application and stated that
the accident was caused because of the negligence on the part of
the driver of the dumper. Since the driver of the bus was not
negligent, its driver, owner and Insurer were not impleaded.
3. The Claims Tribunal by impugned order while relying on
judgment of this Court in Om Wati (since deceased) through
LRs v. Mohd. Din & Ors., 2002 ACJ 868 and Surendrabhai
Chunilal Sheth (deceased) through heirs Mehulbhai & Ors. v.
Oriental Insurance Company Ltd. & Ors., 2006 ACJ 2527 held
that in case of composite negligence, the Claimants should
include the owner, driver and Insurer of both the vehicles or any
one of them. It was observed that there cannot be
apportionment of liability of the joint tortfeasor.
4. Learned counsel for the Petitioner places reliance on a judgment
of the Supreme Court in Machindranath Kernath Kasar v. D.S.
Mylarappa & Ors., AIR 2008 SC 2545. The authority cited is
not attracted to the facts of the present case. In Machindranath
Kernath Kasar (supra) the question was not of involvement of
two vehicles in the accident. The Supreme Court observed that
the driver and owner of the offending vehicle are not joint
tortfeasor in the strict sense of the term. It was further held that
although the driver is not a necessary party but is a proper party
as question of negligence is to be determined in a petition under
Section 166 of the Motor Vehicles Act (the Act). In
Machindranath Kernath Kasar (Supra) the question of
composite negligence was not under consideration. A reference
may be made to the report of the Supreme Court in T.O.
Anthony v. Karvarnani, (2008) 3 SCC 748, where it was held as
under: -
"6. „Composite negligence‟ refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of negligence
on the part of two or more wrong doers, it is said
that the person was injured on account of the
composite negligence of those wrong-doers. In
such a case, each wrong doer, is jointly and
severally liable to the injured for payment of the
entire damages and the injured perso has choice of
proceeding against all or any of them. In such a
case, the injured need not establish the extent of
responsibility of each wrong-doer separately, nor
is it necessary for the court to determine the extent
of liability of each wrong-doer separately. On the
other hand where a person suffers injury, partly
due to the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part of the
injured which contributed to the accident is
referred to as his contributory negligence. Where
the injured is guilty of some negligence, his claim
for damages is not defeated merely by reason of
the negligence on his part but the damages
recoverable by him in respect of the injuries stands
reduced in proportion to his contributory
negligence."
5. In T.O. Anthony (Supra) it was held that in case of composite
negligence each wrong doer is jointly and severely liable to the
Insured for payment of the entire damage and the injured has
the choice to proceeding against all or any of them. Thus,
although the Respondents (Claimants) dispute that there was
any negligence on the part of bus driver, even if it is there the
Appellant cannot compel the Respondents (Claimants) to sue
the other tortfeasor with the driver, owner and Insurer of the
dumper.
6. In my view, there is no illegality in the impugned order. The
petition is devoid of any merit. The same is accordingly
dismissed.
(G.P. MITTAL)
JUDGE
MARCH 02, 2012
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