Pankajbhai Babulal Kantaria vs The Oriental Insurance Company ...
2021 Latest Caselaw 18526 Guj

      C/SCA/16056/2020                           ORDER DATED: 17/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16056 of 2020

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                      PANKAJBHAI BABULAL KANTARIA
                                  Versus
                  THE ORIENTAL INSURANCE COMPANY LTD.
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 1
MR. RUSHANG D MEHTA(6989) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                             Date : 17/12/2021

                              ORAL ORDER

1. The present petition is filed by the original claimant challenging the impugned order passed by the Motor Accident Claims Tribunal (Spl.), Rajkot dated 06.08.2019 in Execution Application No. 118 of 2017 in MACP No. 1946 of 2000.

2. The brief facts of the present case are as under.

2.1 On 12.03.2000, the petitioner was travelling as a passenger in a Maruti car bearing registration No. GJ-3K-4222. A tractor bearing registration No. GJ-12J-8906 came from wrong side and dashed with the maruti car. As a result, the petitioner was injured and claiming Rs. 3,00,000/- as a compensation.

3. Heard learned advocates for the respective parties.

4. I have perused the record, the Tribunal has committed a

C/SCA/16056/2020 ORDER DATED: 17/12/2021

gross error while allowing the MACP. The Tribunal has passed the order held the liability of both the vehicles as 30% and 70%. Against the said order, the present petitioner preferred First Appeal No 825 of 2015 for seeking enhancement of the compensation amount, which came to be allowed by this Court vide its order dated 18.08.2017.

5. In view of above, the petitioner has preferred an Execution Application of the judgment and order and prayed that the amount of compensation to be recovered from the Insurance Company. Therefore, the said application came to be dismissed merely on the ground that the petitioner has not joined the other Insurance Company.

6. In the case of Khenyei Vs. New India Insurance Company Ltd. reported in 2015 9 SCC 273, the Hon'ble Apex Court has held in Paras 4,5 & 6 as under :

4. In Law of Torts, 2nd Edn., 1992 by Justice G.P. Singh, it has been observed that in composite negligence, apportionment of compensation between two tort feasors is not permissible.

5. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006, the author has referred to Performance Cars Ltd. v. Abraham, Baker v. Willoughby, Rogers on Unification of Tort Law: Multiple Tortfeasors, Great North Eastern Railway Ltd. v. Hart, Mortgage Express Ltd. v. Bowerman & Partners and observed thus :

"WHERE two or more people by their independent breaches of duty to the claimant cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it.

If the claimant sues defendant A but not B and C, it is open to A

C/SCA/16056/2020 ORDER DATED: 17/12/2021

to seek "contribution" from B and C in respect of their relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It may be greatly to the claimant's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. Even where all participants are solvent, a system which enabled the claimant to sue each one only for a proportionate part of the damage would require him to launch multiple proceedings, some of which might involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the "easiest target". The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by certain professional bodies, who have argued instead for a regime of "proportionate liability" whereby, as against the claimant, and not merely among defendants as a group, each defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal injury claims, this has occurred in some American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Dept of trade and Industry in 1996 led to the conclusion that the present law was preferable to the various forms of proportionate liability."

6. Pollock in Law of Torts, 15th Edn. has discussed the concept of composite negligence. The relevant portion at page 361 is extracted below :

C/SCA/16056/2020 ORDER DATED: 17/12/2021

"Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons of whom the one is not responsible for the other. It has been supposed that A could avail himself, as against Z who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. It is true you were injured by my negligence, but it would not have happened if B had not been negligent also, therefore, you can not sue me, or at all events not apart from B. Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A to answer to Z: You were not injured by my negligence at all, but only and wholly by B's. It seems to be a question of fact rather than of law (as, within the usual limits of a jury's discretion, the question of proximate cause is in all ordinary cases) what respective degrees of connection, in kind and degree, between the damage suffered by Z and the independent negligent conduct of A and B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B,. But if this last conclusion be arrived at, it is now quite clear that Z can sue both A and B.

At page 362 Author has observed as :-

"The strict analysis of the proximate or immediate cause of the event: the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled- of course, within the limits set by the general rules as to remoteness of damage- to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he can not recover in the whole more than his whole damage."

7. Considering the facts of the case and the ratio laid by the Apex Court, the present petition is hereby allowed. The petitioner is entitled to recover any of the tort feasors. It is not noted that the Oriental Insurance Company can recover the sum of 30% from the other side in the present execution proceedings for that they should not file a separate proceeding

C/SCA/16056/2020 ORDER DATED: 17/12/2021

for recovering the amount, which is paid to the present petitioner in compliance of the judgment and award passed by the Tribunal. The amount which is to be paid to the petitioner and the disbursement is to be made to the petitioner as per the judgment and award passed by the Tribunal by 30% by issuing account payee cheque in the name of original claimant and 70% is deposited in the name of the petitioner in a Nationalized Bank as per his choice. The interest is paid to be petitioner in every quarter.

8. With this observation, this petition is allowed. The impugned order passed by the Motor Accident Claims Tribunal (Spl.), Rajkot dated 06.08.2019 in Execution Application No. 118 of 2017 in MACP No. 1946 of 2000 is hereby quashed and set aside.

(HEMANT M. PRACHCHHAK,J) SALIM/