Iffco Tokio General Insurance Co. ... vs Bhilala Bhagadi Bhudarabhai
2023 Latest Caselaw 6781 Guj

                                                                              NEUTRAL CITATION




     C/SCA/9626/2022                         JUDGMENT DATED: 14/09/2023

                                                                              undefined




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 9626 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 9628 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 9632 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 10456 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 10494 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 10617 of 2022
                         With
      R/SPECIAL CIVIL APPLICATION NO. 9624 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=================================================

      Whether Reporters of Local Papers may be
 1                                                               NO
      allowed to see the judgment ?
 2 To be referred to the Reporter or not ?                       NO
      Whether their Lordships wish to see the fair copy
 3                                                               NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution           NO
   of India or any order made thereunder ?

=================================================
      IFFCO TOKIO GENERAL INSURANCE CO. LTD.
                      Versus
          BHILALA BHAGADI BHUDARABHAI
=================================================

                              Page 1 of 15

                                                  Downloaded on : Sat Sep 16 17:17:51 IST 2023
                                                                                     NEUTRAL CITATION




     C/SCA/9626/2022                               JUDGMENT DATED: 14/09/2023

                                                                                    undefined




=================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Petitioner(s) No. 1
MANDEEP SINGH SALUJA(8791) for the Respondent(s) No. 8
MR MOHSIN M HAKIM(5396) for the Respondent(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 4,5,6,7
=================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 14/09/2023

                        COMMON ORAL JUDGMENT

1. Rule. Learned advocates Mr. Mohsin M. Hakim and

Mr. Mandeep Singh Saluja waive service for the respective

respondents. Though served, the rest have failed to appear.

Considering the issue involved in the petitions and with the consent

and request of the learned advocates for the respective respondents

present, the matters are taken up for final hearing today and are

being decided by this common judgment.

2. All these petitions, have been filed by the petitioner - Iffco

Tokio General Insurance Co. Ltd. (the insurance company) with

following common prayers among others:

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

"(B) Your Lordships may kindly provide appropriate directions to the learned Tribunals to provide the specific directions w.r.t. recovery of compensation where there is inter-se apportionment done in judgment.

(C) Your Lordships may kindly provide appropriate directions to the learned Tribunals to provide the specific directions w.r.t. recovery of compensation where there is inter-se apportionment done in judgment and decree.

(D) Your Lordships may kindly provide appropriate directions for recovery of Compensation to the insurance companies in cases where the vehicles are uninsured and they themselves are offending vehicle.

(E) Your Lordships may kindly provide appropriate directions for recovery of Compensation to the insurance companies in case where the vehicles are uninsured and insurance companies have to recover the compensation from the family of tort-feasor himself.

(F) Your Lordships may kindly provide appropriate directions filing executions where there is specific inter-se apportionment is done by the learned Tribunal in decree as well and judgment."

3. The ground raised by the petitioner - insurance company in the

all the petitions, inter alia, is to the effect that the Tribunal has

materially erred in overlooking the fact that there is apportionment

in the judgment and award and therefore, the liability cannot be,

jointly and severally, laid down. The petitioner - insurance

company, has deposited its share of 25% liability and no further

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

amount could be claimed against them.

4. The facts of the case suggest that the original claimants had

moved the Tribunal on the facts that Jeep bearing registration No.

No. GJ-16-AA-2823 had rammed into the Truck bearing registration

No. No. GJ-06-V-7959 on the wrong side and therefore, the

passengers in the said Jeep had sustained injuries and eventually,

succumbed to the injuries.

4.1 The facts, as had come on the record before the Tribunal, show

the involvement of three vehicles i.e. Truck bearing registration No.

GJ-06-V-7959, Jeep bearing registration No. GJ-16-AA-2823 and

another Jeep bearing registration No. GJ-17-AH-1516. It was stated

that the claimants were travelling in the Jeep No. GJ-16-AA-2823

and were heading towards Chhotaudepur at about 5:45 a.m. and

when they reached on highway, near sim of Village: Dhamodi, it is

alleged that the Truck bearing registration No. No. GJ-06-V-7959

came in rash and negligent manner, on wrong side and dashed with

the Jeep. At the very time, Jeep No. GJ-17-AH-1516 too, had come

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

in full speed, rashly and negligently; the driver of the said Jeep lost

control over the steering and had dashed with the Jeep No. GJ-16-

AA-2823. Thus, it was alleged that owing to the rash and negligent

driving of the drivers of Truck No. GJ-06-V-7959 and the Jeep No.

GJ-17-AH-1516, the accident had occurred.

4.2 Upon appreciation of evidence on record, the learned Tribunal

has considered 50% liability for the payment on opponent Nos. 1

and 2 therein, who are the driver and the owner of Truck No. GJ-06-

V-7959; 25% liability had been laid down on opponent Nos. 3 and 4

therein, who are the driver, owner and the insurance company of

Jeep No. GJ-17-AH-1516; and for the rest 25%, the opponent No. 5

therein, who is the owner of Jeep No. GJ-16-AA-2823, was held

liable. The opponent No. 6 therein - The New India Assurance Co.

Ltd., the insurance company of the Jeep No. GJ-16-AA-2823 came

to be exonerated from the liability to pay the compensation.

5. Learned advocate Ms. Kirti Pathak for the petitioner -

insurance company submitted that the petitioner - insurance

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

company has the responsibility of depositing only 25% of the

amount, while it should not be laid down the burden of paying the

amount for the other opponents, since the liability has been

apportioned in the judgment and award of the Tribunal. The learned

advocate for the petitioner - insurance company submitted that the

executable part is the operative order, which forms the award and

therefore, she states that the execution should be restricted as per the

award drawn where, in the present case, the learned Tribunal has

apportioned the liability for the payment of compensation. Thus,

placing reliance on the decisions of the Hon'ble Supreme Court in

Usha Devi and Another v. Pawan Kumar and Others, rendered in

Civil Appeal No. (s) 9936-9937/2016 on 26.03.2018 and in New

India Assurance Co. Ltd. v. Bismillah Bai and Others, MANU/SC/

0514/2009, it is submitted that recovery of liability of other co-

respondents cannot be permitted through the present petitioner -

insurance company on whom, the liability of 25% is jointly and

severally laid down for the original opponent No. 3.

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

5.1 Ms. Pathak, learned advocate for the petitioner - insurance

company has also relied upon a decision of the Hon'ble Supreme

Court in T. O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, to

contend that the issue of contributory negligence and apportionment

has been dealt with and states that, in case where a person is injured

as a result of negligence on the part of two or more wrongdoers,

then, each wrongdoer, is jointly and severally liable to the injured for

payment of the entire damages and the issue of contributory

negligence has to be dealt with.

6. Learned advocate Mr. Saluja for the New India Assurance Co.

Ltd. submitted that they are exonerated in all the matters and now,

they would have no concern in the issue so raised by the petitioner -

insurance company, as being exonerated.

7. Whereas, learned advocate Mr. Hakim, appearing for the

respective original claimants, relying upon decisions in Khenyei v.

New India Assurance Co. Ltd., (2015) 9 SCC 273, rendered by the

Hon'ble Supreme Court and in Oriental Insurance Co. Ltd. v.

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

Raval Rupsibhai Pasabhai, 2014 (0) GLHEL-HC 231400,

submitted that the claimants had moved the Tribunal by joining all

necessary and proper parties on record and as has been finally

concluded in the decision in Khenyei (supra), in case of composite

negligence, a claimant can recover, at his option, whole damages

from any of the tort-feasors as, for the claimant, the apportionment

of the compensation is a factor, immaterial, as laid down in the said

decision. He submitted that in case of composite negligence,

apportionment of compensation between two tort-feasors vis-a-vis

the claimants is not permissible.

8. Here, the dispute appears to be arising since the New India

Assurance Co. Ltd. came to be exonerated for the vehicle being Jeep

No. GJ-16-AA-2823, whose owner was joined as the opponent No. 5

and the vehicle being Truck No. GJ-06-V-7959, whose driver and

owner are the original opponent Nos. 1 and 2, is an uninsured truck.

So, all the liability of payment, ultimately, has fallen on the

shoulders of the petitioner herein.

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

8.1 In the case of Usha Devi and Another (surpa), the Apex Court

has dealt with such submission on behalf of the appellants, who had

before the Apex Court, stated that the State has obligation to see that

no uninsured motor vehicle is driven on road by virtue of the

provisions of Section 196 of the MV Act, and therefore, the State

ought to pay the amount and recover it from the owner. The

decision rendered in Jai Prakash v. National Insurance Company

Limited and Others, (2010) 2 SCC 607, was referred, wherein, the

said aspect had been dealt with to ensure that all accident victims get

compensation and the Hon'ble Supreme Court suggested for a

comprehensive and unified statute dealing with the accidents so that

the families of the helpless victims do not suffer on account of the

fact that the vehicle is not insured. Paragraphs 33 to 39 of the said

decision (Jai Prakash's case), have been referred in the decision in

Usha Devi and Another (surpa), where, against the said submission,

the learned Attorney General of India had advanced a submission

that, in the absence of a legislation, the State cannot be held liable

under the 1988 Act because of non-compliance by the owner of the

vehicle, who has failed to insure the vehicle. The Hon'ble Supreme

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

Court, thus, has observed that paragraph 41 of the Jai Prakash's

case (supra), is some kind of solace to the victims and has also

observed that, but for the said purpose, proper rules are required to

be framed. The Apex Court was apprised of the progress made by

the Delhi Government having framed a Rule, as was evident from

paragraph 41 of the decision in Jai Prakash's case (supra). The

Hon'ble Supreme Court, thereafter, concluded in paragraph 2 as

under:

"(2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in sub-rule (1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident." Though direction was issued to all the State Governments to incorporate such a rule yet it appears that no steps have been taken so far. In view of the aforesaid, we direct that a copy of the order passed today be communicated to the Chief Secretaries and the Director Generals of Police of all the States and the Registrar Generals of all the High Courts to see that such a rule is introduced if already not done, so that the victims of an accident get some compensation. They may file

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

their response within six weeks. Needless to say that the compensation in hit and run cases will also apply to such cases."

8.2 In view of the observations made by the Hon'ble Supreme

Court in Usha Devi and Another (surpa), it is the State Government

which is to take up the call to incorporate necessary Rule to address

the issue. At present, for this Court, reliance can only be placed on

the decision in Khenyei (supra), where, it has been laid down, after

lengthy discussion, in paragraph 22 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 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

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

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 tort feasor in independent proceedings after passing of the decree or award."

8.3 As has been observed in Khenyei (supra), which has been

relied upon by learned advocate Mr. Hakim for the original

respective claimants, in case of composite negligence, the claimants

are 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 the claimant is entitled to recover, at their

option, whole damages from any of them.

8.4 The petitioner - insurance company had moved the Tribunal to

cancel execution against them in all the matters, but the said

applications came to be disallowed.

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

8.5 It is required to be noted that, in the operative part of the

judgment and award, the learned Tribunal has apportioned the

liability of compensation to be paid, however, in the very same

order, the opponent Nos. 1 to 5 were made to deposit the

compensation amount within 30 days of the order and the claimants

were made entitled to recover the compensation amount at 9%

interest, jointly and severally, from all the respondent Nos. 1 to 5. In

view of the said fact and as has been laid down in Khenyei (supra),

the claimants are entitled to recover the damages from any of the

tort-feasors.

8.6 Thus, in view of the decision in Khenyei (supra), the

claimants would be entitled to recover the amount. For the reliefs

prayed for in these petitions, concluding paragraph 22 in Khenyei

(supra), would be of much assistance to the petitioner - insurance

company, whereby, 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

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

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. Hence,

here, the petitioner - insurance company could file execution

proceedings against the other respondents - joint tort-feasors for the

recovery of the amount. In the present matters, where all the tort-

feasors have already been joined, the learned Tribunal has, therefore,

decided inter se liability, making it enable for others to recover the

amount. Thus, as laid down in the decision in Khenyei (supra), the

present petitioner can recover the amount, by way of execution

proceedings, and would not have to endure the lengthy proceedings

of filing suit for the recovery of the amount in independent

proceedings after the award.

8.7 The decision in T. O. Anthony (supra), as relied upon by

NEUTRAL CITATION

C/SCA/9626/2022 JUDGMENT DATED: 14/09/2023

undefined

Ms. Pathak, learned advocate for the petitioner, has been referred in

Khenyei (supra), and after discussing and referring to the judgment,

has observed final conclusion as emerges in paragraph 22. Thus, the

argument of learned advocate Ms. Pathak for the petitioner would

not survive since the decision in T. O. Anthony (supra), is

concentrating on the factum of contributory negligence of the

claimant himself.

9. In view of the aforesaid discussion and observations, the

petitions fail and are dismissed accordingly. Rule is discharged. No

order as to costs. Interim relief, if any, shall stand vacated forthwith.

9.1 However, at the request of learned advocate for the petitioner -

insurance company, it is reiterated that the petitioner may recover

the amount from the joint tort-feasors, as laid down in Khenyei

(supra), by way of execution proceedings, in accordance with law.

[ Gita Gopi, J. ] hiren /SB-6-9 - RB-109-111