Hdfc Ergo General Insurance ... vs Mukesh Girdhar Baviskar S/O Bimal ...
2021 Latest Caselaw 3328 Guj

      C/FA/2451/2018                                               JUDGMENT




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2451 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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           HDFC ERGO GENERAL INSURANCE COMPANY LTD
                              Versus
    MUKESH GIRDHAR BAVISKAR S/O BIMAL PANDE L.H. OF DECD. BIMAL
                  PAVANKUMAR PANDE & 3 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
. for the Defendant(s) No. 4
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1,2
RULE SERVED(64) for the Defendant(s) No. 3
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 26/02/2021

                              ORAL JUDGMENT

1. This First Appeal is filed by the appellant

- Insurance Company under Section 173 of the

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Motor Vehicle Act challenging the judgment

and award dated 7.2.2018 passed by the

learned Motor Accident Claim Tribunal (Aux.),

13th Additional District Judge, Vadodara in

Motor Accident Claim Petition No.531 of 2004

claiming the compensation of Rs.7,00,000/­

from the opponents under various heads.

2. It is the case of the of the appellant that

the deceased ­ Bimal Pavankumar Pande was

traveling as a pillion ride on Motorcycle No:

GJ­06­AR­3392 from Race Course to Alkapuri on

21.12.2003. The Motorcycle was driven by her

husband. The opponent No.1 ­ Driver/Owner of

the Car No.GJ­06­K­4637 came in excessive,

rash and negligent manner and dashed his car

with the rear part of the Motorcycle and

caused the accident. The deceased initially

sustained grievous head injuries and other

bodily injuries that she was treated and

operated in Unity Hospital at Vadodara. The

injured took discharge due to high medical

C/FA/2451/2018 JUDGMENT

expenses and poor economical condition. The

injured died due to septicemia pending the

treatment due to the said accidental

injuries. The opponent No.2 ­ driver/owner of

the Motorcycle and also the husband of the

deceased died pending the petition. Therefore

he was deleted. The opponent No.1 is the

driver­cum­Owner of the Car and opponent No.3

is the insurer of the Motorcycle involved in

the accident. All the Opponents are jointly

and severally liable to pay the compensation

to the legal heirs of the deceased with cost

and interest. The claimants have claimed the

compensation of Rs.7,00,000/­ from the

opponents under various heads.

3. Heard Mr. Maulik J. Shelat, learned

advocate for the appellant - Insurance

Company and Mr. Mohsin M. Hakim, learned

advocate for the respondents No.1 and 2.

4. Mr. Maulik J. Shelat, learned advocate for

the appellant - Insurance Company has

C/FA/2451/2018 JUDGMENT

submitted that the learned Tribunal has erred

in overlooking the pleading & written

statement and has materially erred in passing

the award against the appellant.

5. He has submitted that the learned Tribunal

has erred in not considering the fact that

driver of insured motorcycle who happens to

be owner & husband of deceased though joined

in proceeding but deleted without joining his

legal heirs then appellant cannot be held

straightaway liable to pay compensation. It

is submitted that insurance policy is to

indemnify owner against his liability to pay

compensation by insurer but when owner is

deleted without joining his legal heirs than

insurer would not be held liable to pay

compensation.

6. He has submitted that the learned Tribunal

has erred in overlooking fact that claimants

are legal heirs of deceased as well as driver

cum owner of insured vehicle than person can

C/FA/2451/2018 JUDGMENT

not be recipient and payer both. It is

submitted that claimants being legal heirs of

owner could not be joined themselves as

opponents being claimants than they have

deleted owner of vehicle, thereby no

liability could have been fastened upon

appellant.

7. He has submitted that without Prejudice to

said submissions the learned Tribunal has not

properly appreciated Section 166 of M.V Act

while granting compensation and has erred in

not deducting share of husband being tort

feasor out of total compensation. He has

submitted that driver & owner happens to be

husband of deceased falls in Class­I legal

heirs category of Hindu Law and also entitle

to receive compensation but being tort­

feasor, his share is required to be deducted

by Tribunal then claimants being children of

deceased entitle to receive only 2/3 out of

total compensation and 1/3 compensation

C/FA/2451/2018 JUDGMENT

(share of husband) ought to have been

deducted from compensation. In support his

submission he has relied on the decision

dated 01­09­2016 delivered in First Appeal

No.1450 of 2016.

8. He has submitted that the learned Tribunal

has not properly appreciated facts of case

and wrongly not decided negligence inter­se_

between tort­feasors by completely ignoring

binding decision of Hon'ble Apex Court in a

case of Khenyel V/s New India Assurance

Company Ltd. Reported In AIR 2015 SC 2261

wherein It has been held as under:­

"What emerges from the aforesaid discussion is as follows:

(i) In the case of composite negligence, 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.

(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors vis­a­vis the

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plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) 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 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 has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings."

9. He has submitted that the learned Tribunal ought to have held the car driver solely negligent for causing accident. It is submitted that as per evidence on record and no rebuttal evidence led by driver of car involved in accident, accident in question

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had taken place due to rash & negligent driving on part of car driver.

10. Per contra, Mr. Mohsin M. Hakim, learned

advocate for the respondents No.1 and 2 -

claimants has submitted that the claimants

should not suffer because of any error

committed by the learned Tribunal in

apportioning the liability. He has submitted

that the awarded amount be disbursed in

favour of the claimants in accordance with

the award passed by the learned Tribunal.

11. Having heard learned advocates for the

parties, on perusal of the impugned judgment

and award and also considering the evidence

on record, it is noticed that while fastening

the liability jointly and severally of the

appellant and respondent No.1 - driver/owner

of the care and fastening the liability of

Rs.8,54,320/­ at the rate of 9% from the date

till realization the learned Tribunal has

erred in not apportioning the liability

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between both, the appellant - Insurance

Company and the driver/owner of the car.

12. In view of the decision in the case of

Hon'ble Apex Court in a case of Khenyel V/s

New India Assurance Company Ltd. Reported In

AIR 2015 SC 2261 and Oriental Insurance Co.

Ltd., vs. Raval Rupsibhai Pasabhai (Decd.)

and others, reported in 2015(1) GLR 216, the

issue in question is squarely covered and

accordingly the Tribunal has committed an

error in not apportioning the inter se

liability.

13. Ordinarily this Court would have remanded

the matter back to decide inter se negligence

of the tort feasors, but this is an accident

of 2004. This Court is therefore of the

opinion after perusing the documents on

record that 60% liability be fastened to the

appellant - Insurance Company and 40% to the

driver/owner of the Car No.GJ­06­K­4637, the

present appellant - HDFC General Insurance

C/FA/2451/2018 JUDGMENT

Company Ltd., insurer of the Motorcycle is

entitled to refund of 40% of decreetal amount

from the amount invested in Fixed Deposit

Receipt before the Tribunal which has been

deposited by the direction of this Court.

After refunding the amount to Insurance

Company the Tribunal shall disburse remaining

amount in favour of the original claimants by

account payee cheque.

14. It is clarified that respondent­original

claimants would be entitled to recover 40% of

the decreetal amount which has been refunded

to the appellant - HDFC General Insurance

Company Ltd., of the motorcycle from original

opponent No.1 - driver/owner of the Car

No.GJ­06­K­4637 by initiating appropriate

proceedings against the respondent No.3 -

original opponent No.1 driver/owner of Car

bearing No.GJ­06­K­4637.

15. In view of above observations, the appeal

is partly allowed. The judgment and award

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dated 7.2.2018 passed by the learned Motor

Accident Claim Tribunal (Aux.), 13th

Additional District Judge, Vadodara in Motor

Accident Claim Petition No.531 of 2004 is

modified and appellant is entitled to refund

of 40% of the total deposited amount with the

Tribunal in the Fixed Deposit and 60% of the

amount is directed to be disbursed in favour

of the original claimants. The civil

application also stands disposed of.

16. Record and proceedings, if any, be sent

back to the trial Court concerned, forthwith.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED