Oriental Insurance Company ... vs Kalpesh Vinubhai Chauhan
2023 Latest Caselaw 1854 Guj

     C/FA/2989/2022                                   ORDER DATED: 22/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/FIRST APPEAL NO. 2989 of 2022
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                In
                  R/FIRST APPEAL NO. 2989 of 2022
                               With
      CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
                                In
                  R/FIRST APPEAL NO. 2989 of 2022

================================================================
                 ORIENTAL INSURANCE COMPANY LIMITED
                                Versus
                      KALPESH VINUBHAI CHAUHAN
================================================================
Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4
================================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 22/02/2023

                              ORAL ORDER

1. The Insurance Company is before this Court

challenging judgment and award dated 10.06.2019 passed by

learned Motor Accident Claims Tribunal (Main), Junagadh in MACP

No.259 of 2012.

2. It is the contention that the learned Tribunal has erred

in attributing 15% contributory negligence to the motorcyclist and

has failed to appreciate the fact that the FIR was against the driver

of Jeep, who was solely negligent for the accident and that the

learned Tribunal has failed to pass any direction for "pay and

C/FA/2989/2022 ORDER DATED: 22/02/2023

recover" of 85% liability of the joint tortfeasor, if it is at all paid by

the Insurance Company, which should be in accordance to the

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

India Assurance Company Limited & Ors., reported in (2015) 9

SCC, 273.

3. The case does not require any admission since in case

of Khenyei (supra), the Hon'ble Apex Court has held that the victim

/claimant is entitled to sue any of the joint tortfeasors or all of them

for recovery of entire amount of compensation. The extent of

liability of each of them separately is neither required to be

established by victim /claimant nor required to be determined by

the Court /Tribunal for the purpose of payment of compensation.

4. In the present case the Insurance Company is

aggrieved by the fact that the Tribunal has apportioned the

negligence, however, has not passed any direction for recovery of

the same from other tortfeasors.

5. Learned Advocate Ms.Rahevar has contended that 85%

negligence has been attributed to the driver of jeep bearing No.GJ-

08-D-8576, but the owner of the jeep was not joined as party

respondent in the Claim Petition. Hence, the Insurance Company

of the other vehicle-Hero Honda motorcycle, i.e. the present

appellant would be required to deposit the whole of the

C/FA/2989/2022 ORDER DATED: 22/02/2023

compensation amount, though share of the compensation would be

only 15%. Hence, it is submitted that necessary directions were

required to be passed by the learned Tribunal so as to see that no

loss is sustained by the appellant-Insurance Company, though no

larger liability has been laid down on the offending vehicle which is

insured with the appellant.

6. In case of Khenyei (supra), the Hon'ble Apex Court has

laid down that in case of composite negligence of more than one

person (excluding victim /claimant) to the cause of accident,

remedy is available to one of the joint tortfeasors from whom entire

compensation could be recovered by the claimant. He can sue non-

impleaded joint tortfeasors in independent proceeding for recovery

of contribution to the extent of their negligence. The Hon'ble Apex

Court has made it further clear that if all joint tortfeasors are

before the Court /Tribunal and sufficient evidence is available, it

may determine the extent of their negligence for the purpose of

adjusting inter se liability so as to enable one to recover sum from

the other in execution proceeding in the main case.

7. Here in the impugned judgment and order, the learned

Tribunal has already apportioned extent of liability of both the

involved vehicles The present appellant-Insurance Company would

have recourse to recover the amount from jeep driver who had

been made party to the matter. Hence, the appellant-Insurance

C/FA/2989/2022 ORDER DATED: 22/02/2023

Company can recover the amount by filing Execution Petition

against driver of jeep, who was made party opponent No.1 before

in MACP No.259 of 2012. Thus, this Court does not find any reason

to admit the First Appeal as recourse is available to the appellant-

Insurance Company to file Execution Petition for recovering the

money from the driver of jeep.

8. Accordingly, the First Appeal stands disposed of with

the aforesaid direction.

9. In view of the order passed in the main First Appeal,

Civil Applications do nor survive. The same stand disposed of

accordingly.

(GITA GOPI,J) SHITOLE