Gujarat High Court
United India Insurance Co. Ltd vs Mansukhbhai Nathabhai Boricha on 20 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2039/2017 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2039 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE CO. LTD.
Versus
MANSUKHBHAI NATHABHAI BORICHA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MS JK HINGORANI(2491) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/02/2024
ORAL JUDGMENT
1. The insurance company in this appeal challenges
the judgment dated 8.2.2017 passed in MACP
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C/FA/2039/2017 JUDGMENT DATED: 20/02/2024
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no.56/2002 by MACT (Aux), Junagadh, where the
claimant has been made entitled to recover the
amount of Rs.1,37,500/- from opponents no.1 to 4
jointly and severally.
2. Learned advocate Mr. Mazmudar for the appellant
submitted that in five group matters, the Tribunal
has held the driver of auto rickshaw negligent to
the extent of 80%, while motorcyclist has been
considered negligent to the extent of 20% and the
present appellant is the insurance company of the
motorcyclist and since the only liability of the
insurance company would come to 20%, Mr. Mazmudar
has urged for a direction in accordance to the
judgment of Khenyei Vs. New India Assurance Co.
Ltd. & Ors., reported in (2015) 9 SCC 273.
"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
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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.
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."
3. Since the amount which is challenged would be 80%
of Rs.1,37,500/-, which comes to Rs.1,10,000/-, in
view of smallness of amount, this Court does not
consider it necessary to entertain the merits of
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the matter. However, in accordance to the judgment
in the case of Khenyei (supra), the insurance
company is permitted to claim 80% amount from the
owner and driver of the rickshaw by way of filing
an execution petition.
4. Considering the smallness of amount, this Court
finds no reason to interfere in the impugned
judgment and award passed by the Tribunal. The
appeal, accordingly, is disposed of.
Notice/Notice of admission is discharged. Interim
relief, if any, shall stand vacated.
5. It is made clear that this order would have no
bearing and/or shall not be considered as
precedent in any of the matters connected to the
accident in question vis-a-vis the impugned
judgment and award.
6. Since the main appeal is disposed of, connected
applications, if any, would not survive and are
disposed of accordingly.
(GITA GOPI,J)
Maulik
