Vaishaliben Mukeshbhai Jani vs Driver - Parmar Yogendrasinh ...
2022 Latest Caselaw 5281 Guj

     C/SCA/3855/2022                             JUDGMENT DATED: 20/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3855 of 2022



FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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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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                   VAISHALIBEN MUKESHBHAI JANI
                              Versus
    DRIVER - PARMAR YOGENDRASINH PRAVINSINH OF TRUCK NO. GJ-
                             12Z-2338
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 3
MS KIRTI S PATHAK(9966) for the Respondent(s) No. 6
SERVED BY RPAD (N) for the Respondent(s) No. 1,2,4,5
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 20/06/2022

                            ORAL JUDGMENT

1. RULE. Learned advocates waive service of notice of rule on behalf of respective respondents. With the consent of both the sides, the matter was heard finally and has been disposed

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of by this judgment.

2. By way of this petition filed under Articles 226 & 227 of the Constitution of India, the petitioners, who are legal heirs of deceased Mukeshbhai Suryakantbhai Jani, have prayed to quash and set aside the order dated 06.08.2021 below Exhibit- 13 in MACEX No.2 of 2021 in M.A.C.P. No.75 of 2021 passed by M.A.C.T. (Main) & learned Principal District Judge, Gir- Somnath at Veraval whereby, the said Execution Petition was allowed and it was held that respondent No.3 herein - Reliance General Insurance Company was entitled to receive the excess amount of Rs.8,05,028/-, which was paid by respondent No.3 to the petitioners herein, original claimants; and to direct respondent No.3 to deposit the deficit amount of Rs.2,45,661/- before the Tribunal.

3. The facts in brief are that on 28.05.2012 deceased - Mukeshbhai Suryakantbhai Jani was going towards Naliya along with other persons in a four-wheeler - Jeep bearing registration No. GJ-12T-1862, which was insured with respondent No.6 herein. While they were on the way, their vehicle met with an accident with a Truck bearing registration No. GJ-12Z-2338, which was insured with respondent No.3 herein - Reliance General Insurance Company Ltd. and in the said accident, Mukeshbhai Suryakantbhai Jani sustained severe bodily injuries and passed away.

C/SCA/3855/2022 JUDGMENT DATED: 20/06/2022

4. The heirs and legal representatives of the deceased preferred claim petition in M.A.C.P. No. 75 of 2012 under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Gir-Somnath at Veraval claiming compensation of Rs.50 Lacs. The said claim petition was partly allowed vide judgment and award dated 17.11.2017 whereby, the original claimants, the petitioners herein, were awarded compensation of Rs.26,50,000/- with interest. Out of the said amount of compensation, original opponent Nos.1, 2 and 3, who are the driver, owner and Insurance Company respectively of the Truck bearing registration No. GJ-12Z-2338, were jointly and severally held liable to pay Rs.15,90,000/- and original opponent Nos.4, 5 & 6, who are the driver, owner and Insurance Company respectively of the Jeep bearing registration No. GJ-12T-1862, were jointly and severally held liable to pay the remaining amount of Rs.10,60,000/- to the original claimants.

5. Both the Insurance Companies, i.e. respondent No.3 - Reliance General Insurance Company Ltd. and respondent No.6

- Shriram General Insurance Company Ltd. challenged the aforesaid judgment and award dated 17.11.2017 before this Court in First Appeal Nos.565 of 2018 and 632 of 2018. The said two appeals were heard and disposed of by the Division Bench of this Court by way of judgment and order dated

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28.06.2019 whereby, both the appeals were partly allowed and the judgment and award dated 17.11.2017 passed by the Tribunal in M.A.C.P. No.75 of 2012 was quashed and set aside and the matter was remanded to the Tribunal for consideration afresh after hearing both the sides.

6. In pursuance of the judgment and order dated 28.06.2019 passed by the Division Bench of this Court, the Tribunal considered the matter afresh and thereafter, passed the judgment and award dated 11.11.2019 whereby, it partly allowed the claim petition against original opponent Nos.1 to 5 and dismissed it qua original opponent No.6 - Shriram General Insurance Company Ltd. Further, the amount of compensation was reduced to 17,20,600/- and original opponent Nos.1 to 5 were held jointly and severally liable to pay the said amount of compensation together with interest at the rate of 7.50% per annum from the date of filing of the claim petition till its realization.

7. It is the say of the petitioners that respondent No.3- Reliance General Insurance Company Ltd. has deposited Rs.24,32,022/- before the Tribunal concerned, which was 60% of the amount with interest, as per the directions given in the earlier judgment and award dated 17.11.2017. However, after the matter was remanded and reconsidered by the Tribunal, the total compensation was reduced to Rs.17,20,600/-, vide

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judgment and award dated 11.11.2019, which was recoverable from respondent Nos.1 to 5 herein.

8. Pursuant to the passing of the judgment and award dated 11.11.2019, the respondent No.3 - Reliance General Insurance Company Ltd. preferred execution petition in MACEX No.2 of 2021 before the Tribunal seeking recovery of the excess amount paid by it to the original claimants. The Tribunal allowed the said petition vide order dated 06.08.2021 by holding that respondent No.3 - Reliance General Insurance Company Ltd. is entitled to get the excess amount of Rs.8,02,028/-, which was paid to the petitioners-original claimants. Being aggrieved by the same, the petitioners-original claimants have preferred the present petition.

9. Learned advocate Mr. Hemal Shah appearing for the petitioners submitted that the deceased was merely travelling as one of the passengers in the Jeep bearing registration No. GJ-12T-1862, which was insured with respondent No.6 - Insurance Company. The deceased had died on account of the injuries sustained in the accident caused by the negligence of the drivers of the Jeep bearing registration No. GJ-12T-1862 and of the Truck bearing registration No. GJ-12Z-2338. Therefore, both are jointly and severally liable for payment of the entire amount of damages.

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9.1 It was pointed out by learned advocate Mr. Shah that the petitioners have also preferred appeal under Section 173 of the M.V. Act before this Court being First Appeal No.2672 of 2021 seeking enhancement of compensation. The said appeal has been admitted by the coordinate Bench on 27.09.2021 and the same is pending. He submitted that the petitioners, original claimants, will have to face grave legal hardship in case this Court enhances the amount of compensation, as they will have to take steps for recovering the excess amount of compensation. He further submitted that the compensation calculated by the Tribunal is not in accordance with the principle laid down by the Apex Court and that there is a deficit in the compensation deposited by respondent No.3. It was, therefore, prayed that the impugned order dated 06.08.2021 passed in execution petition may be quashed and set aside.

9.2 In support of his submissions, learned advocate placed reliance upon a decision of the Apex Court in case of Khenyei v. New India Assurance Company Ltd., (2015) 9 SCC 273 wherein the Apex Court has discussed in detail the principle governing contributory negligence and composite negligence.

10. Learned advocate Mr. Maulik Shelat appearing for respondent No.3 - Reliance General Insurance Company Ltd. submitted that the petitioners-original claimants have already

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received compensation as per the award of the Tribunal and therefore, no purpose would be served in retaining the excess amount deposited by respondent No.3 before the Tribunal. In case this Court enhances the compensation in future in the proceeding of First Appeal No.2672 of 2021, the petitioners- original claimants would have the recourse of taking necessary steps for recovery of the excess amount. He, therefore, submitted that the present petition may be dismissed.

11. Heard learned advocates on both the sides. Pursuant to the order of remand passed by the Division Bench of this Court in First Appeal Nos. 565 of 2018 and 632 of 2018, the Tribunal adjudicated the matter afresh and by way of judgment and award dated 11.11.2019, it partly allowed the claim petition against original opponent Nos.1 to 5; however, it exonerated original opponent No.6 - Shriram General Insurance Company Ltd. from all liability. In the judgment and award, the Tribunal has recorded the conclusion that the drivers of both the Truck bearing registration No. GJ-12-Z-2338 and Jeep bearing registration No. GJ-12T-1862 were negligent to the extent of 60% - 40% respectively for the accident in question.

12. It is a matter of record that the deceased was merely travelling as a passenger in the Jeep and had not contributed in the accident to any extent by his negligence. The accident occurred as a result of the negligence of the drivers of the two vehicles, who are the joint tort-feasors. In other words, the

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accident occurred as a result of the composite negligence of the two drivers. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident 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 not contributed to the accident can claim compensation for the injuries sustained by him or death caused, as the case may be, for the combination of negligence of two or more other persons. In this case, the Tribunal has exonerated original opponent No.6 - Shriram General Insurance Company Ltd. on the ground that the driver of the Jeep involved in the accident was not holding any valid Driving Licence at the time of accident. Be that as it may, the other opponents, i.e. original opponent Nos.1 to 5, shall be liable to make good the liability imposed upon them on account of the composite negligence of the two drivers.

13. Considering the facts and circumstances of the case and the principle laid down by the Apex Court in the case of Khenyei v. New India Assurance Company Ltd. (supra), the original opponent Nos.1 to 5 are liable to make good the liability imposed upon them by way of the judgment and award dated 11.11.2019 passed in M.A.C.P. No.75 of 2012. Though the liability in the form of compensation has reduced pursuant to the order of remand passed by the Division Bench

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of this Court, the respondent No.3 - Reliance General Insurance Company Ltd. could not be permitted to withdraw the excess amount, particularly, when the original claimants have seriously disputed the calculation of compensation carried out by the Tribunal and First Appeal No.2672 of 2021 has been filed by the original claimants seeking enhancement of compensation. If the respondent No.3 - Reliance General Insurance Company Ltd. is permitted to withdraw the excess amount deposited before the Tribunal, the original claimants shall have to face legal hardships for recovery of additional amount, if ultimately, this Court enhances the compensation in the proceeding of First Appeal No.2672 of 2021. Hence, this Court is of the considered opinion that the Tribunal concerned has committed serious error in allowing the respondent No.3 to withdraw the excess amount of Rs.8,05,028/- by passing the impugned order dated 06.08.2021.

14. For the foregoing reasons, the petition is allowed. The impugned order dated 06.08.2021 below Exhibit-13 in MACEX No.2 of 2021 in M.A.C.P. No.75 of 2021 passed by M.A.C.T. (Main) & learned Principal District Judge, Gir-Somnath at Veraval is quashed and set aside and the Tribunal concerned is restrained from releasing any amount in favour of respondent No.3 - Reliance General Insurance Company Ltd. in pursuance of the order dated 06.08.2021. The said amount shall continue to be retained as such in terms of the judgment and award dated 11.11.2019 passed in M.A.C.P. No.75 of 2012. Since a

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dispute has been raised regarding the computation of compensation, the petitioners-original claimants as also opponent Nos.1 to 5 shall be at liberty to supply their own calculation of compensation, along with supporting details, to the Executing Court concerned for its consideration; and if any such applications are received, the Executing Court concerned is directed to consider the same in accordance with law. With the above observation, the petition stands disposed of. Rule is made absolute.

( GITA GOPI, J )

PRAVIN KARUNAN