Delhi High Court
National Insurance Company vs Jitender Dabas & Ors. on 20 November, 2017
$~521
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th November, 2017
+ MAC.APP. 670/2012 & CM No.10926/2012(stay)
NATIONAL INSURANCE COMPANY ..... Appellant
Through: Mr. L.K. Tyagi, Adv.
versus
JITENDER DABAS & ORS. ..... Respondents
Through: Mr. Navneet Goyal, Adv. for
R1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (the claimant) was riding the pillion of motor
cycle bearing registration no. DL-3S-AW 1549 (motor cycle)
driven by the second respondent (the motor cycle rider cum owner)
on 30.12.2006 in the area of Balraj Farm House, Pooth Khurd,
Delhi at about 5:20 PM. The motor cycle came to collide against
stationary bus bearing registration no. DL-1-PB-2174 (the bus) of
Delhi Transport Corporation (DTC). As a result, the claimant
suffered injuries which have rendered him permanently disabled.
He instituted accident claim case (MACT 768/10/07) on
13.12.2007 in which the motor cycle rider, the driver of the bus,
DTC and National Insurance Company Ltd. (the insurer), which
had issued an insurance policy covering third party risk in respect
of the bus, were impleaded. The tribunal held inquiry and, by
judgment dated 09.02.2012, returned a finding that the accident had
occurred due to the composite negligence of both the drivers i.e of
DTC and the motor cycle. It granted compensation in the total sum
of Rs.35,11,500/- and fastened the liability to pay only on the
insurer of the bus, this along with Rs. 50,000/- as counsel fee to the
claimant's counsel.
2. The appeal by the insurer of the bus is pressed only to submit that
in a case of composite negligence, the driver of motor cycle also
having been found responsible, the liability to pay should have
been equally apportioned. Reliance is placed on the ruling of the
Supreme Court of India in Kenyei Vs. New India Assurance
Company Ltd 2015 ACJ 1441 of 2015 (9) SCC 273 wherein the
following principles were settled:-
"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 is joint and several.
22.2. In the case of composite negligence, apportionment
of compensation between two tortfeasors vis-à-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
tortfeasors. 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 the decree or award."
3. The second respondent has been duly served. By order dated
26.02.2016, the appeal was directed to be shown in the list of
"Regulars" for it to come up for hearing on its own turn. When the
appeal is taken up for hearing, there is no appearance on behalf of
the second respondent. The learned counsel for the insurer and for
the claimant have been heard and with their assistance the record
perused.
4. Though negligence on the part of the DTC bus driver has been
found primarily on the ground that he had parked the bus in the
middle of the road without any indication, the evidence
overwhelmingly shows that the negligence was also of the motor
cycle rider. It is he who had driven his two wheeler vehicle rashly.
The motor cycle was driven right into stationary bus causing
injuries to the claimant rendering him permanently disabled. It is
on this basis that the tribunal found that the motor cycle rider was
also guilty of composite negligence. Since he was also a party to
the claim case, the tribunal should have apportioned the liability
and granted inter se rights to the insurer to recover. As a result of
tribunal's failure to do so, necessary directions are required to be
issued by this court.
5. Having regard to the sequence of events leading to the collision,
the liability is apportioned equally amongst the drivers of the bus
and of the motor cycle. In the consequence, the appellant insurance
company is granted rights to recover 50% of the amount paid or
payable under the impugned judgment to the claimant from the
second respondent. For execution of such rights, it is given liberty
to take out appropriate execution proceedings before the tribunal.
6. There was no good ground to award Rs. 50,000/- towards payment
of counsel fee. The order of the tribunal to this extent in favour of
the claimant is set aside.
7. By order dated 03.07.2012 and 19.11.2012, it was brought to the
notice of the court that the amount of compensation had been
recovered by attaching the account of the Insurance Company. In
terms of order dated 19.11.2012, 50% of the awarded amount was
permitted to be released to the claimant in terms of the impugned
judgment. The balance amount was kept in fixed deposit receipts.
The tribunal shall take steps to ensure that the amount towards
counsel fee is refunded to the Insurance Company and the balance
amount with accumulated interest paid to the claimants in terms of
the impugned judgment.
8. The statutory amount shall be refunded to the appellant insurance
company.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 20, 2017
umang
