Jamnaben Rajabha Since Decd. ... vs Koli Kalu Mala
2022 Latest Caselaw 9297 Guj

     C/FA/4058/2008                               JUDGMENT DATED: 20/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4058 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                            Sd/-

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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 ?

==========================================================
               JAMNABEN RAJABHA SINCE DECD. THRO' HEIRS
                               Versus
                      KOLI KALU MALA & 5 other(s)
==========================================================
Appearance:
for the Appellant(s) No. 1
MR HARSHAD K PATEL(2844) for the Appellant(s) No. 1.1
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1.2,1.3
DELETED for the Defendant(s) No. 5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
SERVED BY RPAD (R) for the Defendant(s) No. 6
==========================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 20/10/2022

                             ORAL JUDGMENT

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

1. Feeling aggrieved and dissatisfied by the impugned

judgment and award dated 30.11.2006 passed by the

Motor Accident Claims Tribunal (Aux.), Morvi (hereinafter

be referred to as the "Tribunal") in M.A.C.P. No.132 of

1994, the legal heirs of deceased Jamnaben have

preferred the present appeal under Section 173 of the

Motor Vehicles Act, 1994.

2. Following facts emerge from the record of the case.

2.1 That the deceased Jamnaben Rajabhai was travelling

in the jeep bearing registration No.GJR-3677 from

Wankaner along with other persons and at about 7.30

p.m., when the jeep reached near Ambika Petrol Pump

near the signboard of Village: Rafaleshwar on Wankaner

Morvi National Highway, at that time, truck bearing

registration No.GTX-8970 came from opposite direction

in rash and negligent manner and in excessive speed, due

to which, the driver of the tanker lost control over the

vehicle dashed with the jeep and as a result of which, the

deceased succumbed to the injury. Hence, the legal heirs

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

of deceased Vimlaben filed claim petition before the

Tribunal claiming compensation of Rs.6,00,000/-.

2.2 After considering the oral as well as documentary

evidence led by the parties, the Tribunal has partly

allowed the claim petition by awarding Rs.4,35,000/- as

compensation in favour of the original claimants. The

learned Tribunal has also clarified that both the vehicles

involved in the accident are negligent and that negligency

is quantified as 70% - 30%. The negligency of 70% is on

the part of the original opponent Nos. 1 to 4 and

remaining 30% negligency is considered on the part of

the original opponent Nos. 5 and 6.

3. Heard learned Counsels appearing for both the

sides. I have gone through the material available on

record of the present appeal.

4. Learned counsel appearing for the appellant has

submitted that the impugned judgment and award passed

by the Tribunal is against the evidence on record and

inadequate and unjust. He has submitted that the

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

Tribunal has committed an error while determining the

amount of compensation and the income of the deceased.

He has also submitted that the Tribunal, while passing

impugned judgment and award, though the deceased

was travelling as passenger in the jeep car, has

considered the composite negligence and, therefore,

apportionment made by the Tribunal is against the settled

principles of law. He has submitted that the claimants are

the third party to the incident and as per decision of the

Hon'ble Apex Court in the case of Khenyei Vs. New

India Assurance Company Limited reported in (2015)

9 SCC 273, the claimants are entitled to recover the

compensation from either of the Insurance Company. He

strongly relied upon paragraph No.7 of the said decision

which reads as under:-

"8. In Palghat Coimbatore Transport Co. Ltd. v. Narayanan, [ILR (1939) Mad. 306], it has been held that where injury is caused by the wrongful act of two parties, the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

damage. He has a right to recover the full amount of damages from any of the defendants."

5. On the other hand, learned advocate for the

respondent insurance company submitted that the

learned Tribunal has taken into account all relevant

aspects and after evaluating the evidence on record,

passed the impugned award and therefore, learned

Tribunal has not committed any error in passing the

impugned judgment and award. He submitted that the

impugned judgment and award may not be interfered

with and present appeal may be dismissed.

6. Having considered the averments made in the

appeal, submissions made by the learned counsel

appearing for both the sides and considered the facts of

the case and perused the record and proceedings.

7. Considering the decision of the Apex Court in case of

Khenyei (supra), I am of the considered opinion that the

original claimants can recover the amount of

compensation from either of the insurance company as

they are joint tortfeasor.

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

8. Hence, the appeal is allowed in part. The impugned

judgment and award dated 30.11.2006 passed by the

Motor Accident Claims Tribunal (Aux.), Morvi in M.A.C.P.

No.132 of 1994 is hereby modified to the extent that the

amount of compensation awarded by the Tribunal is

recoverable from all the opponents jointly and severally

and in addition to what has been awarded by the

Tribunal. It is clarified that the claimant is entitled to

recover the said amount from either of the Insurance

Company as per the decision of the Hon'ble Apex Court in

the case of Khenyei (supra) and since either Insurance

Company is not present, the Insurance Company -

respondent no.4 is entitled to recover the proportionate

amount from the opponents - driver and owner of other

insured vehicles qua liability as there is composite

negligence. After deposit of the amount of compensation,

the same shall be disbursed in favour of the claimants

through R.T.G.S., after proper verification. The bank

account details shall be furnished by the learned counsel

C/FA/4058/2008 JUDGMENT DATED: 20/10/2022

for the claimant to the Nazir Department of the Court

concerned.

9. Record and proceedings be sent back to the

concerned Tribunal forthwith. Pending civil applications,

if any, shall stand disposed of accordingly.

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI