Gujarat High Court
Tusharkumar Ranjitbhai Baria vs Bhuneshvar Shiv Pandit on 23 March, 2023
Bench: Gita Gopi
C/FA/1248/2020 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1248 of 2020
With
R/FIRST APPEAL NO. 1249 of 2020
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TUSHARKUMAR RANJITBHAI BARIA
Versus
BHUNESHVAR SHIV PANDIT
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/03/2023
ORAL ORDER
1. Both the MACPs being MACP No.545/2015 and
MACP No.546/2015 impugned in both the appeals, came
to be dismissed on 03.01.2019 by Motor Accident Claims
Tribunal (Aux.), Godhra. MACP No.546/2015 was filed by
minor, who was a pillion rider, while MACP No.545/2015
was raised by the driver of the motorcycle No. GJ-17-AA-
6635.
2. Against the judgment of dismissal of both the
MACPs, the present appeals have been raised being
C/FA/1248/2020 ORDER DATED: 23/03/2023
aggrieved and dissatisfied by the dismissal.
3. Mr.Nishit A.Bhalodi, learned advocate for the
appellant, referring to the observations made in both the
judgments, submitted that the claimant of MACP
No.546/2015 was a pillion rider, hence, it would be a case
of composite negligence, since the vehicles involved were
Motorcycle No. GJ-17-AA-6635 and Motorcycle No. GJ-17-
AC-1677. Mr. Bhalodi submits that the pillion rider and
the claimant of MACP No.545/2015 sustained injury
because of the accident.
3.1 Mr. Bhalodi submitted that the learned
Tribunal was required to decide the negligence aspect in
the matter, and only observing the fact that the claimant
of MACP No.545/2015 has admitted that he was not
holding a driving license, since was minor at the time of
accident, the learned Tribunal came to the conclusion, in
view of the decision of the Tribunal in MACP
No.545/2015, that opponent no.1, who is driver and
C/FA/1248/2020 ORDER DATED: 23/03/2023
owner of Motorcycle No.GJ-17-AC-1677 cannot be
considered negligent for the occurrence of the accident.
3.2 Mr. Bhalodi submitted that learned Tribunal
has failed to even consider the negligence aspect even for
the pillion rider for whom, as per the judgment of
Khenyei Vs. New India Assurance Company Ltd.,
reported in (2015) 9 Supreme Court Cases 273, the
learned Tribunal was required to decide the composite
negligence factor.
3.3 In MACP No.545/2015, it is argued by Mr.
Bhalodi that the claimant himself has deposed about the
negligence aspect, merely, not holding a license would
not suggest the fact that the claimant himself was
negligent for the accident, when there has been no
rebuttal evidence produced by the driver and owner of
Motorcycle No. GJ-17-AC-1677, where the evidence of the
claimant himself was on record showing the negligence of
the driver and owner of the Motorcycle No. GJ-17-AC-
1677.
C/FA/1248/2020 ORDER DATED: 23/03/2023
4. While Mr. Vibhuti Nanavati, learned advocate
for the Insurance Company submitted that the learned
Tribunal has recorded the fact that the claimant of MACP
No.545/2015, as was a minor, was not holding any driving
license, and thus was solely negligent for the accident,
and, thus would be liable to pay the compensation.
5. Having heard learned advocate for both the
sides. It is to be noted that in the case of Khenyei Vs. New
India Assurance Company Ltd. (supra), it has been laid
down in paragraph 22 to 22.4 as under:
"22. What emerges from the aforesaid
discussion is as follows :
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.
22.2 In the case of composite negligence,
apportionment of compensation between
two tort feasors vis-a-vis the
C/FA/1248/2020 ORDER DATED: 23/03/2023
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.
22.3 In case all the joint tort feasors have
been impleaded and evidence is sufficient,
it is open to the court/tribunal to
determine inter 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.
22.4 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
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tort feasor in independent proceedings
after passing of the decree or award.
6. For the pillion rider, it is a case of composite
negligence, hence, as the claimant would be 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, and in that circumstances,
apportionment of compensation between two joint tort
feasors is not permissible. But, in a case, where both the
tort feasors have been impleaded and evidence is
sufficient on record, then it becomes necessary for the
Tribunal to determine inter se composite negligence of
the drivers, and such determination would be necessary
for the purpose of recovery of the sum from otherside.
7. Thus, in view of the observation made in the
case of Khenyei Vs. New India Assurance Company Ltd.
(supra), the learned Tribunal was required to determine
the negligence of the drivers of the vehicles, and for the
pillion rider, by following the case of Khenyei Vs. New
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India Assurance Company Ltd. (supra), it would not be
incumbent upon the claimant to join both the tort feasors.
Hence, the claimant can recover the compensation
amount from any of the tort feasors.
8. In the result, both the appeals are allowed. The
judgments and awards dated 03.01.2019 passed in MACP
No.546/2015 and MACP No.545/2015 by the Motor
Accident Claims Tribunal (Aux.) Godhra are quashed and
set aside and the matter is ordered to be remanded back
to the concerned Tribunal with direction that the Tribunal
may decide the negligence aspect as well as quantum
after allowing both the sides to adduce evidence on
record. Let this exercise be completed within a period of
6 months. All the issues are kept open for the Tribunal to
decide the same in accordance to the evidence on record.
9. Record and Proceedings, if any, be sent back to
the concerned Tribunal forthwith.
(GITA GOPI,J)
Pankaj
