Gujarat High Court
Arvind Tulsidas Ganatra vs Dilipkumar Jwalaprasad Pande on 15 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/4162/2018 ORDER DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4162 of 2018
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ARVIND TULSIDAS GANATRA
Versus
DILIPKUMAR JWALAPRASAD PANDE
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/02/2024
ORAL ORDER
1. The judgment dated 08.08.2018 passed by learned
Motor Accident Claims Tribunal (Aux.) Jamnagar in MACP
No.219 of 2013 is challenged only on the limited ground
of error committed by the Tribunal of not considering the
case of the appellant as a pillion rider as of composite
negligence, where the appellant pillion rider would be
entitled to recover the amount from any of the tort
feasors.
2. Learned advocate Mr. Nishit A. Bhalodi submitted
that the facts of the case was as noted by the Tribunal
itself suggests that the another vehicle which was involved
is an unknown Chakda rickshaw while the accident had
occurred with the motorcycle No.GJ-10-BK-2286
whereupon the appellant was traveling as a pillion rider.
NEUTRAL CITATION
C/FA/4162/2018 ORDER DATED: 15/02/2024
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Learned advocate Mr. Bhalodi submitted that the total
compensation amount awarded is Rs.2,39,880/- and the
appellant does not challenge the same at present but
would require a modification in the award as per the
judgment of Khenyei Vs. New India Assurance Co. Ltd. &
Ors., reported in (2015) 9 SCC 273 and thus submitted
that the appellant be allowed to recover the total amount
from the Insurance Company of the motorcycle.
3. On consideration of the facts on case, where the
claimant had stated on 11.03.2013 at about 5.30, he was
traveling as a pillion rider a motorcycle, registration
No.GJ-10-BK-2286 driven by opponent No.1, and were
heading to Jamnagar from Aliabada and when they came
near the place Mahaprabhuji Baithak, faced with an
accident, where chakda rickshaw came in full speed in a
negligent manner and dashed with motorcycle. Claimant
sustained injuries and he was admitted as indoor patient in
Jamnagar private hospital, the case from the side of
claimant is of composite negligence. The offence was
registered with Jamnagar City 'A' Division Police Station
as I-C.R. No.57 of 2013.
4. The Tribunal on consideration of evidence had
NEUTRAL CITATION
C/FA/4162/2018 ORDER DATED: 15/02/2024
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attributed 90% negligence of the chakda rickshaw driver
while 10% of the motorcyclist, and therefore, allowed the
appellant to recover only 10% amount which cames to
Rs.23,988/-. 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 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.
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C/FA/4162/2018 ORDER DATED: 15/02/2024
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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."
5. It is required to be noted that the appellant was a
pillion rider thus it would be a case from his side as a
composite negligence since both the vehicles were found
negligent in the accident, the claimant would be entitled
to recover the amount from any of the tort feasors.
6. In the result, the operative order is modified. The
appellant-claimant, thus, is allowed to recover the amount
of Rs.2,39,880/- jointly and severely from both the
respondents at 9% interest.
7. It is further clarified there in case when the identity
of the chakda rickshaw and the driver would be known to
the Police or through any other Agency or even to the
Insurance Company then both the respondents are
permitted to recover 90% amount from the driver, owner
and Insurance Company of the Chakda rickshaw by way of
execution petition.
(GITA GOPI,J)
Manoj Kumar Rai
