Gujarat High Court
New India Assurance Company ... vs Manishkumar Shantilal Panchal on 1 April, 2022
Bench: Sandeep N. Bhatt
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 20 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
NEW INDIA ASSURANCE COMPANY LIMITED
Versus
MANISHKUMAR SHANTILAL PANCHAL & 2 other(s)
================================================================
Appearance:
MR.KRUTIK A PARIKH(7268) for the Appellant(s) No. 1
MR AMIT N PATEL(2749) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/04/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company, being aggrieved and dissatisfied with the
judgment and award dated 16.03.2009 passed by the Motor
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
Accident Claims Tribunal, Valsad in Motor Accident Claim
Petition No. 141 of 2004, by which the Tribunal has
awarded Rs.1,10,615/- compensation with 8% per annum
interest to the claimant, holding Opponent Nos.2 to 3 liable,
jointly and severally.
2. Brief facts of the case are as under:
2.1 On 15.11.2001, when the claimant was going from
Valsad to Bilimora in Maruti Car bearing registration No.GJ-
15-K-80 in moderate speed, at that time near Seen of village
Sonwada, one Truck bearing registration No.GJ-7-U-5335
came in full speed and in rash and negligent manner
endangering human life and dashed with the Maruti Car.
Due to that the claimant received grievous injuries and got
fracture in the right thigh, on the chest and other injuries
on the whole body. He was initially admitted in the hospital
at Valsad as an indoor patient for one month. He was
operated there. Thereafter, he was shifted to the Gram Seva
Trust Hospital, Kharela where he was again operated. The
claimant has therefore filed a claim petition before the
Tribunal for getting compensation.
2.2 Notice is served to the driver, owner and insurance
company of the Truck. The driver was deleted before the
Tribunal. The Tribunal has led oral as well as documentary
evidence.
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
2.3 After hearing the rival submissions of the respective
parties, the Tribunal has passed the impugned award as
noted above.
2.4 The insurance company has challenged the impugned
judgment and award mainly on the ground that the
negligence part of Truck is attributed 10% and negligence
part of Maruti Car is attributed to 90%. In the finding of the
Tribunal, the Tribunal has not given liberty to the insurance
company to recover the amount of compensation from any
of the tortfeasors. The appeal is also on the ground that the
Tribunal has wrongly apportioned the liability of 10% and
90% to the Truck and Maruti Car respectively. Therefore,
the present appeal is filed to this limited extent of
apportionment of liability. Though, the other grounds
regarding the aspect of quantum is taken in the memo of
appeal but at the time of arguments, the cross contentions
are not raised further by the learned advocate. The amount,
which is awarded by the Tribunal, is Rs.1,10,615, which is
on the lower side.
2.5 Being aggrieved and dissatisfied with the above
finding on the aspect of quantum as well as liability, the
present appeal is filed on the aspect of apportionment of
liability also and further, on the aspect of liberty to recover
the amount from any of the trotfeasors by the insurance
company after payment of such amount.
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
3.1 Learned advocate Mr. Krutik A. Parikh for the
appellant - insurance company has pointed out that para 14
of the impugned judgment, the Tribunal has discussed the
aspect of negligence and liability to pay the amount of
compensation to the claimant. Where the claim of the
claimant is a case of composite negligence, therefore, the
claimant can recover the amount from any of the
tortfeasors. It is submitted by learned advocate for the
appellant that the Tribunal has given that direction but the
Tribunal has failed to give further direction in case one of
the tortfeasors; like present insurance company to pay the
entire amount and then, the amount, which is recoverable
from the other tortfeasors, is in view of 10% and 90%
negligence apportioned between the two said vehicles.
Appropriately, the liberty is required to be granted to
recover the amount from the other tortfeasors by the
appellant - insurance company after paying the amount to
the claimant.
3.2 Learned advocate for the appellant has relied upon the
decision of the Hon'ble Apex Court in the case of Khenyei
Vs. New India Assurance Company Ltd. & Ors. reported
in (2015) 9 SCC 273, para 22.3 is relevant which is as
under:
"22.3 In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to the
court/tribunal to determine inter se extent of composite
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
negligence of the drivers. However, determination of the
extent of negligence between the joint tort feasors 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 negligence has been determined by the
court/tribunal, in main case one joint tort feasor can
recover the amount from the other in the execution
proceedings."
3.3 Further, he has submitted that the appropriate order
may be passed by considering that aspect. Further, he has
contended that even otherwise, looking to the F.I.R. and
Panchnama, the Tribunal has wrongly attributed the
negligence part by considering 10% of the Truck and 90%
of the Maruti Car, which should be more of the Maruti Car,
looking to the F.I.R. and Panchnama. Therefore, he prays to
allow the appeal.
4.1 Per contra, learned advocate Mr. Amit N. Patel for the
respondent No.1 has submitted that the Tribunal has rightly
apportioned the negligence to the extent 10% & 90% to the
Truck and Maruti Car respectively as Maruti Car is found
totally on the wrong side as per the Panchnama. Therefore,
the accident is occurred due to sole negligence of the
Maruti Car. Since the Truck is a heavy vehicle, the Tribunal
has attributed 10% to the Truck also. Further, he has
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
submitted that the claimant is a third party and therefore,
the aspect of the negligence for him is the case of
composite negligence and therefore, the claimant can
recover the amount from any of the tortfeasors. In support
of his submissions, he has relied upon the the decision of
the Hon'ble Apex Court in the case of Khenyei (supra),
and para 22.2 is relevant which is as under:
"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."
4.2 Therefore, the claimant can recover the amount from
any of the tortfeasors and since the insurance company has
deposited the amount, the claimant is entitled to recover
the entire amount and it is between the appellant -
insurance company and other tortfeasors to recover the
proportionate amount from the other tortfeasors. Further,
he has submitted that the amount, which is awarded by the
Tribunal is Rs.1,10,615 with 8% p.a. interest, is on the
lower side, looking to the medical bills at Exh.26 and his
permanent disability certificate at Exh.40 and loss incurred
to the claimant, the amount which is awarded by the
Tribunal, is on the very conservative side. Therefore, he
prays that the present appeal is required to be dismissed as
meritless as there is no valid reasons found by this Court to
interfere in the impugned judgment passed by the Tribunal.
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
5.1 I have considered the rival submissions. I have
perused the record and proceedings of the Tribunal. The
only question now remains is to consider the both of them
are relying on the decision of the Hon'ble Apex Court in the
case of Khenyei (supra) and the direction contains in that
judgment. Therefore, it is correct that the case of the
claimant- respondent No.1 is of composite negligence, as
the claimant is a third party, who is travelling in the Maruti
Car. Though, the Tribunal has given specific findings about
the negligence of 10% of the Truck and 90% of the Maruti
Car in para 14 of the impugned judgment, it is the
contention of the appellant - insurance company that the
Tribunal has failed to give further direction about the
recovery of the amount from the other tortfeasors after
paying the amount to the claimant by the insurance
company.
5.2 Further, if we consider the direction given in para 22.3
of the decision of the Hon'ble Apex Court in the case of
Khenyei (supra), the Hon'ble Supreme Court has
categorically found as under:
" The 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
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
other."
5.3 Further, in para 22.4 the Hon'ble Supreme Court has
held as under:
"22.4 It would not be appropriate for the
court/Tribunal to determine the extent of complete
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."
5.4 Further, needless to note that appropriate that the
appellant can resort to the independent proceedings from
the joint tortfeasors as they were not impleaded in the
present case by the claimant and in view of the direction in
para 22.4 noted above by the Hon'ble Apex Court, it is open
for the appellant to take recourse available under the law.
This clarification more particularly, the Maruti Car was
going on the wrong side, therefore, apportionment of
negligence of the Maruti Car to the extent of 90%, is
attributed, which is just and proper. Therefore, the present
appeal is meritless and required to be dismissed, with
clarification recorded in para 22.4 of the decision of the
Hon'ble Apex Court in the case of Khenyei (supra) above,
which would meet the ends of justice.
C/FA/20/2010 JUDGMENT DATED: 01/04/2022 ....
6. With the above observations, the following order is
passed:
6.1 The present First Appeal No.20 of 2010 is dismissed,
with no order as to costs.
6.2 The amount which is deposited by the insurance
company before the concerned Tribunal, which is lying in
the FDR and/or with the Tribunal, shall be paid to the
claimant, after due verification and by following due
procedure, by way of account payee cheque, within a period
of six weeks from the date of receipt of copy of this order.
6.3 Record and Proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
