Gujarat High Court
Shriram General Insurance Co Ltd vs Jagatsinh Alias Vaghsinh Punjesinh ... on 1 October, 2024
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C/FA/2322/2020 JUDGMENT DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2322 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHRIRAM GENERAL INSURANCE CO LTD
Versus
JAGATSINH ALIAS VAGHSINH PUNJESINH CHAUHAN & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR DA SANKHESARA(5955) for the Defendant(s) No. 1,2,3
NOTICE SERVED for the Defendant(s) No. 4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/10/2024
ORAL JUDGMENT
The sole contention raised by learned advocate for the appellant is
that in the road accident two vehicles viz., Tata Truck and the rickshaw
are involved whilst the claimant being third party. He would submit that
since two vehicles driven by opponent no.1 and opponent no.4
respectively collided with each other resulted into death of Gopalsinh, in
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view of decision in case of Khenyei Versus New India Assurance
Company Limited [2015 (9) SCC 273] tribunal ought to have held that
claimant being third party are entitled to recover the compensation from
any of the tort feasors jointly and severally. In paragraph 14 of the said
decision the inter se negligence has been assessed; 70% is attributed to
the driver of the truck and 30% is attributed to the driver of the rickshaw.
The truck was insured with Sree Ram General Insurance Company
Limited. In this circumstances, learned advocate for the appellant would
submit that in view of the decision in case of Khenyei (supra), the
present insurance company which has been selected by the claimant to
recover the amount of compensation may be given a right to recover 30%
of negligence attributed to the driver of the auto-rickshaw which
otherwise shall be paid by the insurance company in excess to its liability.
2. Learned advocate for the claimant would submit to pass necessary
order in the facts and circumstances of the case.
3. Noticeably, the insurance company has not raised any other
contentions; except to grant him the right to recover 30% amount equal to
the negligence attributed to the rickshaw driver as insurance company
would pay the said amount to the claimant under the principle of
composite negligence.
4. In Khenyei (supra), the Apex Court has observed in paragraph 18
thus:
"18. This Court in Challa Bharathamma & Nanjappan (supra) has
dealt with the breach of policy conditions by the owner when the
insurer was asked to pay the compensation fixed by the tribunal
and the right to recover the same was given to the insurer in the
executing court concerned if the dispute between the insurer and
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the owner was the subject-matter of determination for the tribunal
and the issue has been decided in favour of the insured. The same
analogy can be applied to the instant cases as the liability of the
joint tort feasor is joint and several. In the instant case, there is
determination of inter se liability of composite negligence to the
extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus,
the vehicle - trailor-truck which was not insured with the insurer,
was negligent to the extent of 2/3rd. It would be open to the insurer
being insurer of the bus after making payment to claimant to
recover from the owner of the trailor-truck the amount to the
aforesaid extent in the execution proceedings. Had there been no
determination of the inter se liability for want of evidence or other
joint tort feasor had not been impleaded, it was not open to settle
such a dispute and to recover the amount in execution proceedings
but the remedy would be to le another suit or appropriate
proceedings in accordance with law.
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 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
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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."
5. In view of the above, the appeal is partly allowed and the
impugned award is modified to the extent that opponent no.3 - Sree Ram
General Insurance Company Limited is given right to recover the amount
which has deposited equally 30% negligence of the driver of the auto-
rickshaw from the owner of the Tata truck on the strength of his
judgment.
R & P be sent back.
(J. C. DOSHI,J)
sompura
