Gujarat High Court
Divisional Manager vs Bhikhubhai Meghabhai Gohel on 13 January, 2022
Bench: Hemant M. Prachchhak
C/SCA/22083/2019 ORDER DATED: 13/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22083 of 2019
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DIVISIONAL MANAGER
Versus
BHIKHUBHAI MEGHABHAI GOHEL
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Appearance:
MR PALAK H THAKKAR(3455) for the Petitioner(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 2
MR.NANDISH H THACKAR(7008) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/01/2022
ORAL ORDER
1. The present petition is filed by the Insurance Company
challenging the impugned order passed by the Motor Accident
Claims Tribunal (Auxi.), Junagadh dated 12.06.2019 in
Execution Application No. 1 of 2018 in MACP No. 172 of 2016
(old claim case No. 2185B/1999, Veraval), whereby the
Tribunal has rejected the execution application of the present
petitioner.
2. The present petition is filed with the following prayers:
"A. To pass an appropriate writ and / or direction and / or order
allowing Execution Application No. 1 of 2018 (Exh.1) in MACP No. 172
of 2016, Junagadh (old No. 2185B/1999, Veraval) and an application
(Exh. 17) in respect of issuance of "Japti Warrant."
B. To pass an appropriate order or direction directing the Motor
Accident Claims Tribunal, Jungadh to issue "Japti Warrant" against
the respondents for recovering the amount of Rs. 1,12,400/.
C/SCA/22083/2019 ORDER DATED: 13/01/2022
C. To pass order or direction against respondents to pay an
amount of Rs. 1,12,400/- against respondents to pay an amount of Rs.
1,12,400/- with interest @ 18% p.a. from 25.09.2017 jointly and
severally to the petitioner.
D. Pending admission, hearing and final disposal of the petition,
direct the respondents to deposit an amount of Rs. 1,12,400/- with
interest @ 18% p.a. from 25.09.2017 jointly and severally with the
Tribunal."
3. The brief facts of the present case are as under.
3.1 On 20.11.1998 at about 7:00 p.m. an accident was
occurred between two rickshaws i.e. Rickshaw No. GJ-11-V-
1160 (insured with the petitioner) and Rickshaw No. GTW-209.
The claimant - Kalubhai Nathabhai Sisodiya was travelling in
Rickshaw No. GJ-11-V-1160 and due to accident he sustained
injuries. The claimant filed claim petition being MACP No. 172
of 2016 Junagadh (old No. 2185B/1999, Veraval) seeking
compensation of Rs. 2 lakh. The Tribunal by the judgment and
order dated 26.10.2016 held that the driver of both the
Rickshaws were negligent equally in causing the accident and
further held that all the original opponent (in claim petition)
were jointly and severally liable to pay an amount of Rs.
83,700/- with proportionate costs and interest @ 9% p.a. from
the date of claim petition to the claimant.
4. Mr. Palak Thakker, learned advocate for the petitioner
has submitted that the Tribunal erred in law in rejecting the
Execution Application and also application at Exh.17. It is
submitted that in case of composite negligence, when the
entire compensation amount is paid by one tortfeasor to the
C/SCA/22083/2019 ORDER DATED: 13/01/2022
victim, the said tortfeasor can recover the amount of
compensation from the other tortfeasor to the extent of
liability of other tortfeasor in the absence of any order to that
effect.
4.1 It is submitted that the Tribunal erred in observing that
no order was passed by the Tribunal in the claim petition that
after making payment of compensation by one tortfeasor, the
said tortfeasor can recover the amount from the other
tortfeasor. It is submitted that the Tribunal observed that in
the absence of any such order, the Execution Application filed
by the petitioner cannot be entertained.
4.2 It is submitted that the Tribunal erred in law in not
considering the decision of the Hon'ble Supreme Court in the
case of Khenyei Vs. New India Assurance Company Ltd.
Reported in (2015) 9 SCC 272. It is submitted that as per the
ruling of the said decision, in case of joint tortfeasor when
extent of their negligence is determined by the Tribunal, one
joint tortfeasor can recover the amount from the other in the
execution proceedings without any order to that effect.
4.3 It is submitted that the Tribunal failed to appreciate that
when negligence is determined by the Tribunal in case of joint
tortfeasors, the Tribunal may not require to pass order
permitting one tortfeasor to recover the amount from the other
tortfeasor to the extent of liability of the other tortfeasor.
Therefore, it is submitted that both the impugned orders
deserve to be quashed and set aside.
5. Heard learned advocates for the respective parties
C/SCA/22083/2019 ORDER DATED: 13/01/2022
through the Video Conference.
6. Having considered the submissions made by the learned
advocates for the parties and perused the impugned order
passed by the Tribunal, this Court finds that the Tribunal has
committed a serious error while passing the impugned order
by ignoring the fact that in the original judgment and award,
the Tribunal while dealing with the issue No.1 specifically
considered the contents of the FIR, Panchama at the place of
the incident (Exh. 45, 46 & 47). However, the Tribunal has held
that all the respondents are jointly and severely liable to pay
the compensation to the original claimants. Though, the
petitioner has deposited the awarded amount with the
Tribunal, but the present petitioner is entitled to recover 50%
of the amount from driver and owner of the vehicle involved in
the accident in question. Therefore, while passing the
impugned order, the Tribunal has not considered the fact that
though both the vehicles involved in the accident are equally
responsible for the accident and therefore they are liable to
apportioned 50% towards both but the Tribunal has ordered to
recover the compensation from all the respondents jointly and
severally.
7. Considering the facts of the present case and recent
decision of the Hon'ble Apex Court in the case of Khenyei
(supra), I am of the view that the Tribunal has completely
overlooked and ignored the provision of law. The petitioner has
relied upon the said judgment and the observation made in
Para-18. It also appears that the Tribunal has committed a
serious error of law, while passing the impugned order and
has interpreted the order passed by this Court, while passing
C/SCA/22083/2019 ORDER DATED: 13/01/2022
the impugned judgment, the Tribunal has not stated that the
petitioner- Insurance Company is entitled to recover 50% from
the other, which is absolutely erroneous and unwarranted.
Though the Tribunal has specifically come to a conclusion that
considering the FIR and Panchnama, the accident can be
avoided by taking proper caution and care by both the drivers,
therefore, both the drivers are held responsible and negligent
in the accident in question. Therefore, the observations made
by the Tribunal is required to be quashed and set aside.
8. In view of above, the present petition is allowed. The
impugned judgment and award passed by the Motor Accident
Claims Tribunal (Auxi.), Junagadh dated 12.06.2019 in
Execution Application No. 1 of 2018 in MACP No. 172 of 2016
(old claim case No. 2185B/1999, Veraval) is hereby quashed
and set aside. The present petitioner - Insurance Company is
permitted to recover 50% of the amount from the driver and
owner of the other offending vehicles. Rule is made absolute.
(HEMANT M. PRACHCHHAK,J)
SALIM/
