Madras High Court

Ramalakshmi vs Shenbagadevi on 16 July, 2021

                                                                            CRP(MD).No.173 of 2021

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 16.07.2021

                                                      CORAM

                           THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

                                            C.R.P. (MD).No.173 of 2021



                    1. Ramalakshmi
                    2. Minor Meenakshi
                    3.Minor Vishnu Priya                            : Petitioners / claimants
                    (Minors rep. by through their mother
                    and natural guardian / 1st petitioner herein)

                                                     Vs.
                    1.Shenbagadevi
                    2.The Manager,
                    The Liberty General Insurance Company,
                    3rd Floor, Raja Parli Building,
                    79/2, Bye Pass Road,
                    Ponmeni, Madurai.                                     : Respondent/ Plaintiff


                    PRAYER: Civil Revision Petition is filed under Article 227 of
                    Constitution of India, to number the claim petition in unnumbered
                    MCOP.No. Of 2021 pending in file No.7 of 2021, dated 04.01.2021 on the
                    file of Motor Accident Claims Tribunal, Additional District Judge,
                    Virudhunagar.




                    1/8
https://www.mhc.tn.gov.in/judis/
                                                                           CRP(MD).No.173 of 2021



                                         For Petitioners    : Mr. Selva Adithya


                                                     ORDER

The revision is directed against the order of returning the

Motor Accident Claim petition by the Motor Accidents Claims Tribunal /

Additional District Court, Virudhunagar District.

2. Since the civil revision petition has been filed against the

return made by the Tribunal, before taking the claim petition on file, there

is no necessity for issuance of notice to the respondents.

3. The revision petitioners have laid the claim petition under

Sections 140 and 166 of the Motor Vehicles Act before the Tribunal

claiming compensation for the death of one Boominathan, husband of the

first claimant and father of the claimants 2 and 3, who died in a road

accident occurred on 14.11.2020, against the owner and insurer of the car

alleging that the car had hit the Two Wheeler and caused accident.

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.173 of 2021

4. The Tribunal has returned the claim petition directing the

claimants to implead the owner and insurer of the Two Wheeler as per the

judgment of the Division Bench of Madras High Court in C.M.A.No.2309

of 2018, dated 12.12.2019. Thereafter, the claim petition was represented

by stating that as per the Judgment of the Hon'ble Supreme Court in

Khenyei Vs. New India Assurance Company Ltd, Others reported in

2015 (1) TNMAC 801 (SC), the claim petition is maintainable, but, the

Tribunal has again returned the claim petition now under challenge,

directing the claimants again to implead the insurer of the Two Wheeler.

This Court in CRP(MD).Nos.681 and 682 of 2021, dated 08.06.2021 has

held that the order of returning the claim petitions for impleading the

owner and insurer of other vehicle involved is not good in law and it is

necessary to refer the relevant Paragraphs:

“9. The Hon'ble Supreme Court in Khenyei Vs. New India Assurance Company Ltd, Others reported in 2015 (1) TNMAC 801 (SC), while deciding whether it is open to the claimants to recover the entire compensation, from one of the joint tort-feasers in the accident occurred due to the composite negligence of both the vehicles, has considered various decisions, and has laid down the following principles of law:-

“(i) In the case of Composite Negligence, Plaintiff/Claimant is entitled to sue both or any one of the

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.173 of 2021

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-feasros 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 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.”

10.Considering the above, it is very much clear that in case of joint tort feasers, where liability is joint and several, it is the choice of the claimants to claim compensation from the owner and driver and insurer of both the vehicles or any one of them. Subsequently, another full Bench of Hon'ble Apex Court in Kamlesh and others Vs. Attar Singh and others reported in 2015 (2) TN MAC 577 (SC), by referring the above Khenyei's case has held that in case of composite negligence, the claimant is entitled to sue both or any one of Joint Tort feasors and to recover entire compensation as liability of joint tort feasors is joint and several.

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.173 of 2021

14.Considering the above, since judgment of the Hon'ble the Division Bench of this Court in CMA.No.2309 of 2018, has not referred the judgment of the Supreme Court in Khenyei's case, the judgment can only be considered as per incuriam.

15.In view of the law laid down by the Hon'ble Supreme Court, the Tribunal has no power or authority, directing the claimants to implead the owner and insurer of the other vehicle. Hence, the order returning the claim petitions is not proper and is very much against the legal dictum laid down by the Hon'ble Supreme Court and hence, the same are set aside and the Tribunal is directed to take the claim petitions on file, if they are otherwise in order.”

The above decision is squarely applicable to the case on hand.

5. In view of the law laid down by the Hon'ble Supreme Court,

the Tribunal has no power or authority, directing the claimants to implead

the owner and insurer of the other vehicle. Hence, the order returning the

claim petition is not proper and is very much against the legal dictum laid

down by the Hon'ble Supreme Court and as such, the same is liable to be

set aside.

6. In the result, the Civil Revision Petition is allowed and the

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.173 of 2021

Motor Accident Claims Tribunal / Additional District Judge, Virdhunagar

is directed to take the claim petition on file, if it is otherwise in order. No

costs.