Nitaben Kishorbhai Thanki vs Reliance General Insurance Co. ...
2022 Latest Caselaw 821 Guj

     C/SCA/12452/2021                                  ORDER DATED: 27/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12452 of 2021

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                       NITABEN KISHORBHAI THANKI
                                 Versus
                  RELIANCE GENERAL INSURANCE CO. LTD.
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1,2,3
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                               Date : 27/01/2022

                                 ORAL ORDER

1. The present petition is filed by the original claimants challenging the order passed by the Motor Accident Claims Tribunal (Main), Principal District Judge, Gir Somnath at Veraval dated 06.08.2021 in Execution Application No. 1 of 2021 below Exh. 13 in MACP No. 74 of 2012, with the following prayers.

"(A) Your Lordships be pleased to admit and allow this petition.

(B) Your Lordships be pleased to pass an appropriate order to quash and set aside the order in Execution Petition No. 01 of 2021 in MACP No. 74 of 2012 at Veraval by reducing the recovery / refund of excess amount of Rs. 1,56,280/- with proportionate interest and cost instead of Rs. 10,15,670/-.

(C) Your Lordships be pleased to stay the recovery of excess amount as determined by the learned Tribunal in the order dated 06.08.2021 in Execution Petition No. 01 of 2021.

(D) Your Lordships be pleased to observe that the recovery / refund at this stage would not come in the way of the present applicant in the First Appeal No. 231 of 2020 for enhancement of compensation."

C/SCA/12452/2021 ORDER DATED: 27/01/2022

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

2.1 The original claimants have preferred MACP No. 74 of 2012 before the Motor Accident Claims Tribunal, Veraval. The said claim petition was decided by the Tribunal vide order dated 17.11.2017, whereby the Tribunal has allowed the claim petition by awarding Rs. 24,70,000/-.

2.2 Being aggrieved and dissatisfied with the impugned judgment and award, both the Insurance Companies have preferred Appeals being First Appeal No. 564 of 2018 (filed by Shree Ram General Insurance Company Ltd.) and the second being First Appeal No. 631 of 2018 (filed by the Reliance General Insurance Company Ltd.) challenging their liabilities. The appeals came to be partly allowed and the matter was remanded back to the Tribunal for fresh reconsideration.

2.3 Thereafter, the Tribunal has re-heard the claim petition No.74 of 2012 and partly allowed the said claim petition by awarding compensation to the tune of Rs. 13,25,720/- with interest at the rate of 7.5% per annum from the date of registration of this petition till realization within one month.

2.4 While passing the impugned judgment and award, the Tribunal exonerated the respondent No.6 - Shriram General Insurance Company from its liability.

3. Being aggrieved, the present petitioners moved an application for execution of the impugned judgment and award and the same was allowed by the Motor Accident Claims

C/SCA/12452/2021 ORDER DATED: 27/01/2022

Tribunal (Main), Principal District Judge, Gir Somnath vide order dated 06.08.2021.

4. Being aggrieved and dissatisfied with the said order, the present petitioners moved the petition before this Court and prayed that instead of excess amount of Rs. 14,82,000/- the Insurance Company i.e. respondent is entitled to recover/ refund of Rs. 1,56,280/-along with proportionate cost and interest. Since the Tribunal has awarded Rs. 13,25,720/- the impugned judgment and award passed by the Tribunal hold both the Insurance Company 60% and 40% and it was the case of composite negligence. Therefore, the present petitioners moved an application to execute the said judgment and award against the present Insurance Company i.e. respondent. The Reliance General Insurance Company has deposited Rs. 14,82,000/- before the Tribunal with proportionate cost and interest. Therefore, they are entitled to refund Rs. 1,56,280/- with proportionate cost and interest,

5. Mr. Maulik Shelat, learned advocate appearing for respondent Insurance Company has submitted that in view of the recent decision of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Company Ltd. Reported in (2015) 9 SCC 273, more particularly in para Nos. 15, 21 and 22.1

15. 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

C/SCA/12452/2021 ORDER DATED: 27/01/2022

in T.O. Anthony v. Karvarnan & Ors. [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 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 wrong-doers. 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 wrong-doer 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 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

C/SCA/12452/2021 ORDER DATED: 27/01/2022

between composite negligence and contributory negligence. The High Court has failed to correct the said error."

21. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

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.

6. The petitioners can execute the award from any tortfeasor. Since the liability is of the tortfeasors, the petitioners moved an application to recover the amount of compensation from the Insurance Company, but while passing that order, the liability of proportionate by the Tribunal i.e. 60% and 40%, and therefore, the liability of the present Insurance Company i.e Reliance General Insurance Company is 60%, so they can recover 40% from the other tortfeasors, the amount of compensation which has already deposited before the Tribunal.

7. I have heard learned advocates appearing for the respective parties through the Video Conference.

8.     Having           considered    the      material     on      record          and






          C/SCA/12452/2021                              ORDER DATED: 27/01/2022

considering the facts and circumstances of the case, this Court finds that the petition deserves consideration. The present petition is partly allowed. The impugned order passed by the Motor Accident Claims Tribunal (Main), Principal District Judge, Gir Somnath at Veraval dated 06.08.2021 in Execution Application No. 1 of 2021 below Exh. 13 in MACP No. 74 of 2012 is modified to the extent that Reliance General Insurance Company is entitled to refund Rs. 1,56,280/- along with proportionate cost and interest. The said amount to be refunded to the Reliance General Insurance Company by account payee cheque after receiving the copy of this order.

9. It is also clarified that the Reliance General Insurance Company is entitled to recover 40% of the share from the other tortfeasors by way an execution application in accordance with law.

10. It is further clarified that the amount of compensation passed by the Tribunal i.e. Rs. 13,25,720/- at the rate of 7.5% from the all the joint tortfeasors from the date of application till the date of realization any excess amount of interest is to be refunded to the Reliance General Insurance Company.

(HEMANT M. PRACHCHHAK,J) SALIM/