Gujarat High Court
The National Insurance Co. Ltd vs Jagrutiben Bhavarlal Shah on 13 March, 2023
Bench: Gita Gopi
C/SCA/17394/2022 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17394 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17402 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17760 of 2022
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THE NATIONAL INSURANCE CO. LTD.
Versus
JAGRUTIBEN BHAVARLAL SHAH
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Appearance:
MR GC MAZMUDAR(1193) for the Petitioner(s) No. 1
MR HG MAZMUDAR(1194) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/03/2023
COMMON ORAL ORDER
[1] By way of these applications, the challenge
is given to the order dated 22.04.2021 passed by the
Motor Accident Claims Tribunal (Main), Surat in
MACP No.307 of 2021, MACP No.306 of 2021 and
MACP No.305 of 2021, whereby the application of
the Insurance Company at Ex.19 came to be rejected
wherein the prayer has been made to join the
Owner, Driver and Insurance Company to the
offending vehicle Inova Car bearing No.GJ-05-JL-2103,
as party respondents.
C/SCA/17394/2022 ORDER DATED: 13/03/2023
[2] Referring to the case of Amarsi Jugabhai
Driver Vs. Vijayaben Hemantlal Dhulia & Ors. reported
in 1996 (3) GLR, 493, Mr.Mazmudar, learned advocate
for the petitioner submitted that it would be always
advisable to join the other tortfeasors in the claim
petition so as to avoid ambiguities and multiplicity
of the proceedings, and further would avoid the
complexity of recovery of the liability, if at all fixed
by the Tribunal.
2.1 While learned Tribunal rejecting the
application has referred the judgment of Khenyei Vs.
New India Assurance Company Ltd. & Ors. reported in
(2015) 9 SCC 273 and observed that in case of
composite negligence, the claimant cannot be
compelled to sue a person against whom they do not
seek any relief and the Insurance Company on record
cannot insist on having the others being joined as
opponents as the liability of tortfeasors involved, is
joint and several.
[3] Mr.Paresh Darji, learned advocate appearing
for the claimant has referred the judgment of
C/SCA/17394/2022 ORDER DATED: 13/03/2023
Khenyei (supra) and supported the impugned order
passed by the learned Tribunal. He is permitted to
file his Vakaltnama.
[4] In the case of Amarsi (supra), the Division
Bench of this Court has relied upon the reasons
stated in the case of Hiraben Bhaga Vs. G.S.R.T.
Corporation reported in 1982(1) GLR 190 by laying
emphasis that when an application for joining a
party is submitted by one of joint tortfeasors on
record, such application should be allowed almost as
a matter of rule and practice, and another joint
tortfeasors should be joined as party Opponent.
[5] Reliance has been placed in the case of
New India Assurance Company Ltd. Vs. Muna Maya
Basant W/o. Sher Bahadur Basant reported in (2001)1
GLR 915, the said case has also referred the case of
Gujarat State Road Transport Corporation Vs. Gurunath
Shahu reported in (1989) 1 GLR 581, wherein it has
been held that when there are more one tortfeasors,
technically a claim petition against one of the
tortfeasors is not bad, but it is desirable that the
Tribunal will not adopt the easy course which may
C/SCA/17394/2022 ORDER DATED: 13/03/2023
quickly dispose of the matter. As such disposal gives
rise to other litigations. Therefore, whenever a plea
for joining another joint tortfeasors is raised and
prayed for, it would be better for the Tribunal to
insist that all the tortfeasors are brought on record.
[6] In the case of Khenyel (supra), it was held
by the Hon'ble Apex Court as under:
"What emerges from the aforesaid discussion
is as follows:-
(i) 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.
(ii) In the case of composite negligence,
apportionment of compensation between two
tort feasors vis a vis the plaintiff/claimant is
not permissible. He can recover at his option
whole damages from any of them.
(iii) In case all the joint tort feasors have
been impleaded and evidence is sufficient, it is
open to the court/tribunal to determine inter
C/SCA/17394/2022 ORDER DATED: 13/03/2023
se extent of composite negligence of the
drivers. However, determination of the extent
of negligence between the joint tort feasors is
only for the purpose of their inter se liability
so that one may recover the sum from the
other after making whole of payment to the
plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them
have been impleaded and the apportionment/
extent of their negligence has been determined
by the court/tribunal, in main case one joint
tort feasor can recover the amount from the
other in the execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of
composite negligence of the drivers of two
vehicles in the absence of impleadment of
other joint tort feasors. In such a case,
impleaded joint tort feasor should be left, in
case he so desires, to sue the other joint tort
feasor in independent proceedings after passing
of the decree or award."
C/SCA/17394/2022 ORDER DATED: 13/03/2023
[7] In the referred judgment of Khenyei (supra),
it has been laid down that in case of composite
negligence, the claimant is entitled to sue both or
any one of the joint tortfeasors and can recover the
entire compensation as liability of joint tortfeasors is
jointly and severally. In that circumstances, it has
been laid down that the apportionment of
compensation between two tortfeasors vis a vis the
claimant is not permissible. However, in case, when
the joint tortfeasors have been impleaded and
evidence is sufficient, it had been made open to the
Tribunal to determine inter se extent of composite
negligence of the drivers, and that determination of
the extent of negligence between the joint tortfeasors
is for the purpose of laying down the inter se
liability of the joint tortfeasor so as to enable them
to recover the amount from the others in a execution
petition.
[8] Keeping in mind the aforesaid facts and
relying upon the observations made in the case of
Amarsi (supra), it would be always advisable for the
C/SCA/17394/2022 ORDER DATED: 13/03/2023
Tribunal to join the other tortfeasors and when an
application has been moved by the claimant or by
the torfeasors on record, such an application should
be allowed as a matter of rule and practice as in
future, there would not be any resistance from the
other side on the principle of res-judicata, and
further, non entertaining such application would lead
to multiplicity of the proceedings.
[9] Thus, in view of the above, these
applications are allowed. The order dated 22.04.2021
passed by the Motor Accident Claims Tribunal
(Main), Surat in MACP No.307 of 2021, MACP
No.306 of 2021 and MACP No.305 of 2021 is hereby
quashed and set aside. The Petitioner - Insurance
Company is permitted to join the referred party of
Exhibit 19 in MACP No.307 of 2021, MACP No.306
of 2021 and MACP No.305 of 2021.
Direct service is permitted.
(GITA GOPI,J)
MANOJ
