New India Assu. Co. Ltd, Vadodara vs Ashokbhai Jethabhai Patel
2021 Latest Caselaw 4600 Guj

         C/FA/1207/2010                                    JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.        1207 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

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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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                NEW INDIA ASSU. CO. LTD, VADODARA
                              Versus
              ASHOKBHAI JETHABHAI PATEL & 5 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR SIDDHARTH H DAVE(5306) for the Defendant(s) No. 2
MR TRILOK J PATEL(658) for the Defendant(s) No. 3,4,5
NOTICE SERVED(4) for the Defendant(s) No. 1,2
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 6
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                          Date : 23/03/2021

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 30.09.2009 passed by the Motor Accident Claims Tribunal (Aux), Vadodara in MACP No. 2 of 1991, the appellant­insurance company has preferred this appeal under Section 173 of

C/FA/1207/2010 JUDGMENT

the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 That the accident took place on 02.07.1990 between Vaghodiya to Vadodara city. The deceased Habibkhan Pathan and one Ramchandra were travelling on the motorcycle bearing registration No. GCD 8702 and the deceased was the pillion rider. The record indicates that when the motorcycle reached near Shradda Petrol Pump, a jeep bearing registration No. GJ­02­9829 came from the other side and dashed with the motorcycle because of which the deceased received fatal injuries and died during the treatment. An FIR was lodged with the jurisdictional police station and the claimants filed the present claim petition and claimed compensation of Rs. 2,00,000/­. It was the case of the original claimants hat the deceased was working as driver at Mumbai and was aged 50 years. It was further the case of the claimant that the income of the deceased was Rs. 6,000/­ per month. Other documentary as well as oral evidence was adduced by the claimants and the learned Tribunal by the impugned judgment and award, awarded a sum of Rs. 2,59,000/­ with 9% interest. Being aggrieved by the same, the insurance company has preferred this appeal.

C/FA/1207/2010 JUDGMENT

3. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. Trilok J. Patel, learned advocate for respondent no.3 to 5 and Mr.Jash Thakkar, learned advocate for Mr. Siddharth Dave, learned advocate for respondent no.2.

4. Mr. Vibhuti Nanavati, learned advocate appearing for the appellant has taken this Court through the factual matrix arising out of this appeal and has also relied upon the evidence on record, which shows the manner in which the accident has occurred. Mr. Nanavati, learned advocate appearing for the appellant has contended that two vehicles were involved in the accident whereas in the claim petition, the original claimants have preferred the claim petition against the driver, owner and insurance company of the jeep. On the aforesaid ground, Mr. Nanavati therefore contended that the present appellant being insurer of the jeep can only be made liable to the extent of 50%. On the aforesaid ground, it was therefore contended that the appeal be allowed and the impugned judgment and award be modified accordingly.

5. Mr. Trilok Patel, learned advocate appearing for the original claimants and Mr. Jash Thakkar, learned advocate appearing for Mr. Siddharth Dave, learned advocate for the respondent no.2 have supported the impugned award.

6. No other or further submissions have been made

C/FA/1207/2010 JUDGMENT

by the learned advocates appearing for the parties.

7. The sole contention as regards the liability and the contention that the insurance company of the other vehicle involved in the accident is not joined and therefore, the appellant is liable only to satisfy half of the award is squarely covered by the judgment of the Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. reported in (2015) 9 SCC 723. The Hon'ble Apex Court has observed thus ­

"14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan [2008 (3) SCC 748] has held that in case of contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence.

        The    relevant     portion     is    extracted





 C/FA/1207/2010                                  JUDGMENT



     hereunder:

"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 wrong­doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong­doer 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.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly

C/FA/1207/2010 JUDGMENT

responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

The decision in T.O. Anthony v.

Karvarnan & Ors. (supra) has been relied upon in Andhra Pradesh State Road Transport Corpn. And Anr. vs. K. Hemlatha & Ors. [2008 (6) SCC 767]."

"17. The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non­impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them."

C/FA/1207/2010 JUDGMENT

"22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2 In the case of composite negligence, apportionment of compensation between two tortfeasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them."

8. The ratio laid down by the Apex Court in the case of Khenyei (supra) would squarely apply to the facts of this case. The appeal therefore deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) BIJOY B. PILLAI