Delhi High Court
Raj Pal Kaur & Ors. vs Pawan Gir & Ors. on 30 October, 2013
Author: Suresh Kait
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30th October, 2013
+ CM(M) 1187/2013
RAJ PAL KAUR & ORS. ..... Petitioners
Represented by: Mr. Navneet Goyal, Adv.
versus
PAWAN GIR & ORS. ..... Respondents
Represented by: Mr. Vaidant Chadha, Adv. for R3
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CM. No.17253/2013 (for exemption)
Exemptions allowed, subject to all just exceptions.
The application stands disposed of.
+ CM (M) 1187/2013
1. Notice issued to respondent no. 3.
2. Ld. Counsel named above accepts notice on behalf of the said
respondent.
3. With the consent of the ld. Counsels for the parties, instant petition is
taken up for final disposal.
4. The petitioner is aggrieved with the impugned award dated
14.08.2013 whereby, ld. Tribunal while allowing the application under
Section 151 CPC moved by the respondent no. 3 / insurance company
recorded as under:
"An application under Section 151 CPC has been moved for
impleading driver of the TATA Ace no. CH-04-L-7734 as a
party in the present petition as the vehicle was also involved in
collision in which death occurred of the deceased.
It is stated that the deceased was travelling in TATA Ace no.
CH-04-L-7734 as aforestated and when he reached the spot,
the aforesaid TATA Ace no. CH-04-L-7734 struck against the
standing Truck No. HR-68-1458. In view of the said fact, it is
alleged that TATA Ace No. CH-04-L-7734 itself was also
responsible for the collision.
Be it as it ay, the aforesaid TATA Ace No. CH-04-L-7734 was
being driven by its driver namely Narinder Singh son of Shri
Rattan Singh, resident of House No. 1384/9, Phase-II, Mohali
and as such the aforesaid person is required to be impleaded as
party inclusive of the owner and the insurer of the aforesaid
vehicle. As the owner as well as the insurer are not within the
knowledge, notice be issued to Narinder Singh, Son of Shri
Rattan Singh, resident of House No. 1384/9, Phase-II, Mohali
for the next date of hearing. Thereafter as per the application,
the aforesaid person, owner and insurer shall be impleaded as
party and thereafter the petitioner shall file amended memo of
parties. The application stands disposed of."
5. Ld. Counsel appearing on behalf of the petitioners / claimants submits
that if two vehicles are involved in the accident, the claimants can chose the
insurer and insured in respect of the vehicles as tort feasors to recover the
compensation amount. It is not mandatory to implead the insured and insurer
of both the vehicles involved in the accident.
6. To strengthen his arguments, ld. Counsel for the petitioner has relied
upon a judgment passed by the Double Bench of this court in the case of Om
Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184, wherein it is held as
under:
"One Sanjeev Kumar was driving his Car No. HRH-24 with two
others-Shiv Singh and Sat Pal on 27.5.1979 when it was hit by a
Truck No. DLL-5052 coming from opposite direction. All the
three sustained injuries and died in the process. Their LRs filed
claim petitions which were resisted by the Insurance Company
on the plea of its limited liability of Rs. 50,000/-. The company
took the plea in its written statement but did not seek framing of
any issue of this. Nor did it place on record any original copy,
carbon copy or photo-copy of the insurance policy along with
or immediately thereafter. It also failed to call upon the insured
to produce the original copy. It, however, produced an attested
copy through its Branch Manager, R.K. Khanna (RW-1) who
testified that this was the true copy of original Policy No.
459680287 covering vehicle number DLL 5052 for a period
from 27.2.1979 to 26.2.1980 for a third party risk of Rs.
50,000/-. He also stated that the original policy was issued
under his signature. He did not produce any other document or
record to show that the company had not charged any extra
premium from the insurer.
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% share of their awarded compensation
in favor of the joint tort-feasors of the truck present before the
Court as they had failed to implead tort-feasors 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 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 case.
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 wrong doer is liable for the whole
damage if it is otherwise made out. In other words the liability
of two sets of tort-feasors becomes both joint and several."
7. In the present case, two vehicles are involved in the accident in
question, one is TATA ACE CH-04-L-7734 and another is truck bearing
no. HR-68-1458.
8. The admitted fact is that FIR is registered against the truck driver of
the vehicle bearing registration no. HR-68-1458. Accordingly, the
petitioners / claimants have rightly sought relief against the said vehicle.
9. Therefore, keeping in view the dictum in Om Wati (Supra), I set aside
the order dated 14.08.2013 passed by the ld. Tribunal.
10. In view of above, instant petition is allowed.
CM. No. 17252/2013
With the disposal of the instant petition itself, instant application has
become infructuous and disposed of as such.
SURESH KAIT, J
OCTOBER 30, 2013
jg
