Raysangji Dhanaji Thakor vs Karimbhai Hasanbhai Dal
2025 Latest Caselaw 2978 Guj

Gujarat High Court

Raysangji Dhanaji Thakor vs Karimbhai Hasanbhai Dal on 12 February, 2025

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                               C/FA/3625/2018                                      ORDER DATED: 12/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 3625 of 2018
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                                                  RAYSANGJI DHANAJI THAKOR
                                                            Versus
                                                KARIMBHAI HASANBHAI DAL & ORS.
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                       Appearance:
                       MR.HIREN M MODI(3732) for the Appellant(s) No. 1
                       MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
                       MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 4
                       NIYATI D CHAUHAN(9082) for the Defendant(s) No. 2
                       RULE SERVED for the Defendant(s) No. 3
                       RULE UNSERVED for the Defendant(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                             Date : 12/02/2025

                                                              ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant being aggrieved and dissatisfied with the judgment and award dated 12.04.2017 passed by the Motor Accident Claims Tribunal, Gandhidham - Kutchh in Motor Accident Claim Petition No.142 of 2007.

2. In petition under section 163 of MV Act, whereby claimant

- Shri Rayasangji Dhanaji Thakor was occupant in Jeep No.Gj- 13-V-1037. Learned Tribunal assessed Rs.1,24,500/- and granted same with interest at the rate of 7.5% p.a. from the date of petition till realization and directed to recover jointly from opponent no.1 and 2 i.e. driver and owner of Jeep. Learned Tribunal in case of composite negligence, went to decide inter-se negligence of two vehicles and held driver of Jeep fully negligent in causing road accident and exonerated opponent no.3 and 4

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from liability to pay compensation.

3. Before I take facts of road accident, it deserves to be mentioned that driver of either vehicles have not entered into witness box to unfurl real facts of road accident. Facts which could be taken from the pleadings is that claimant was travelling with family in Jeep No.GJ-13-V-1037 from Samkhiyal to Morbi. When the jeep reached 3 kilometers from Samhiyal, at that time, opponent no.3 driver of Santro Car No.GJ-12-P-7542 came from opposite side in excessive speed and dashed with jeep. Resultantly, the claimant who was occupant in jeep was seriously injured. He was taken to hospital and ultimately, he filed claim petition under section 163 of MV Act for getting compensation.

4. Learned Tribunal fasten liability upon driver and owner of Jeep to pay compensation, perhaps on account of filing of FIR and charge-sheet against driver of Jeep. While fastening liability on driver of jeep to pay compensation, learned Tribunal ignored material aspect that it is case of composite negligence. Use of motor vehicle is sufficient to grant compensation. In case of composite negligence, claimant has election to prefer claim petition against any of the wrong doer due to whose negligence accident took place. The finding of learned Tribunal fastening complete liability upon driver and owner of jeep is not sustainable. Finding of learned Tribunal assessing inter-se negligence of wrong dower under section 163A of the MV Act is violative of very purport of legislation. Proceedings under section 163A cannot be made par with section 166 of MV Act. [see :

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Shivaji vs Divisional Manager United India [(2019 (12) SCC 395].

5. In case of composite negligence, claimants can recover the amount of compensation jointly and severally from any of the wrong dower in view of judgment of Hon'ble Apex Court in the case of Khenyei (supra). In para 18, the Hon'ble Apex Court has held as under :-

"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 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 file 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

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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 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."

6. In view of above, finding of learned Tribunal exonerating driver, owner of Santro Car from liability to pay compensation is totally perverse finding. The claimant who is sufferer of wrong doer can elect to get compensation from any of the wrong doer. In case of composite negligence, the claim petition can be filed against any of the wrong dower or any of them, the claimant has right to recover the compensation from any of the wrong dower. Finding of learned Tribunal exonerating opponent nos.3 and 4 - driver / owner and insurer of Santro Car GJ-12-P-7542 is set aside. In given facts, inter-se negligence of both the vehicles is held upto 50%. The claimant would be entitled to recover compensation jointly and severally from all the opponents of claim petition.

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                                C/FA/3625/2018                            ORDER DATED: 12/02/2025

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7. For the foregoing reasons, the appeal is partly allowed in aforesaid terms. The appellants / claimants would be entitled to recover the amount of compensation i.e. Rs.1,24,500/- jointly and severally from all the opponents with 7.5% p.a. from the date of petition till realization.

8. Opponent no.4 - Royal Sundaram Alliance Insurance Company Ltd. is directed to deposit entire decreetal amount including interest and cost before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

9. Opponent No.4 - Royal Sundaram Alliance Insurance company Ltd. is given liberty to recover the amount of compensation which it has deposited exceeding its liability from other wrong doer on the strength of this order by executing it.

10. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. Record and proceedings be sent back to the concerned Tribunal, forthwith.

(J. C. DOSHI,J) SATISH