Madras High Court
United India Insurance Co. vs B.Gopalakrishnan on 8 October, 2021
C.R.P.(PD).Nos.384 to 388 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)Nos.384 to 388 of 2017
and C.M.P.Nos.1746 to 1750 of 2017
United India Insurance Co., Ltd.,
Old No.139, New No.50,
North Usman Road,
T.Nagar, Chennai 17. .. Petitioner in
all C.R.Ps.
Vs.
1.B.Gopalakrishnan
2.G.Kalarani
3.S.Jagadeesan
4.A.Nagappan
5.State Express Transport Corporation Ltd.,
Rep. By its Managing Director,
Pallavana Salai,
Chennai 600 002. .. Respondents
in C.R.P.No.384/2017
1.V.Jacob Ruban
2.S.Jagadeesan
3.State Express Transport Corporation Ltd.,
Rep. By its Managing Director,
Pallavana Salai,
Chennai 600 002. .. Respondents
in C.R.P.No.385/2017
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C.R.P.(PD).Nos.384 to 388 of 2017
1.Indirani
2.S.Jagadeesan
3.State Express Transport Corporation Ltd.,
Rep. By its Managing Director,
Pallavana Salai,
Chennai 600 002. .. Respondents
in C.R.P.No.386/2017
1.V.Arockia Mary
2.S.Jagadeesan
3.State Express Transport Corporation Ltd.,
Rep. By its Managing Director,
Pallavana Salai,
Chennai 600 002. .. Respondents
in C.R.P.No.387/2017
1.Indira
2.S.Jagadeesan
3.State Express Transport Corporation Ltd.,
Rep. By its Managing Director,
Pallavana Salai,
Chennai 600 002. .. Respondents
in C.R.P.No.388/2017
Common Prayer: Civil Revision Petitions filed under Article 227 of the
Constitution of India, against the fair and decreetal orders dated
15.09.2015 made in M.P.Nos.46 to 50 of 2015 respectively in
M.C.O.P.Nos.5276 of 2013, 7701 of 2013, 248 of 2014, 371 of 2014 and
738 of 2014, on the file of the II Special Sub Court, MACT, Chennai.
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C.R.P.(PD).Nos.384 to 388 of 2017
(In C.R.P.No.384/2017)
For Petitioner : Mr.K.Padmanabhan
for M/s.M.J.Vijayaraaghavan
For Respondents : Mr.Arunkumar (For R1 & R2)
for M/s.Sampathkumar & Associates
Mr.K.J.Sivakumar (For R5)
(In C.R.P.Nos.385 to 388/2017)
For Petitioner : Mr.K.Padmanabhan
for M/s.M.J.Vijayaraaghavan
For Respondents : Mr.F.Terry Chellaraja (For R1)
for M/s.Malar
Mr.K.J.Sivakumar (For R3)
COMMON ORDER
(The matter is heard through 'video conferencing/hybrid mode')
These Civil Revision Petitions are filed against the fair and
decreetal orders dated 15.09.2015 made in M.P.Nos.46 to 50 of 2015
respectively in M.C.O.P.Nos.5276 of 2013, 7701 of 2013, 248 of 2014,
371 of 2014 and 738 of 2014, on the file of the II Special Sub Court,
MACT, Chennai.
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C.R.P.(PD).Nos.384 to 388 of 2017
2.The issues and parties involved in all the Civil Revision Petitions
are one and the same and hence, they are disposed of by this common
order.
3.The claimants in all the Civil Revision Petitions filed the said
M.C.O.P.Nos.5276 of 2013, 7701 of 2013, 248 of 2014, 371 of 2014 and
738 of 2014, claiming compensation against one S.Jagadeesan/owner of
the Lorry bearing Registration No.TNS 6939, United India Insurance
Company Limited/insurer of the said Lorry and A.Nagappan/driver of the
said Lorry, for the death of one G.Karthikeyan in M.C.O.P.No.5276 of
2013 and injury of claimants in other claim petitions viz.,
M.C.O.P.Nos.7701 of 2013, 248 of 2014, 371 of 2014 and 738 of 2014,
alleging that the accident occurred due to rash and negligent driving by
the driver of the Lorry. In the said M.C.O.Ps., the Insurance Company
filed separate counter statements and denied that the accident occurred
due to rash and negligent driving by the driver of the Lorry. According to
the Insurance Company, the driver of the bus bearing Registration
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C.R.P.(PD).Nos.384 to 388 of 2017
No.TN-01-N-8013, owned by the State Express Transport Corporation
Limited, was responsible for the accident and hence, the driver and
owner of the Bus are necessary parties.
4.The Insurance Company filed M.P.Nos.46 to 50 of 2015, to
implead the State Express Transport Corporation Limited as 4th
respondent in all the M.C.O.Ps. According to the Insurance Company, in
the FIR, it has been stated that the victim in M.C.O.P.No.5276 of 2013
died as the Bus, owned by the State Express Transport Corporation
Limited, ran over his head. In view of the same, the State Express
Transport Corporation Limited is necessary and proper party. The
claimants in all the claim petitions filed separate counter statements and
denied the averments in the affidavits filed in support of the above M.Ps.
According to the claimants in C.R.P.(PD).No.384 of 2017
(M.C.O.P.No.5276 of 2013), the Bus owned by the State Express
Transport Corporation Limited in which the deceased G.Karthikeyan was
travelling as a passenger, broke down due to mechanical defect and was
stopped and parked in the extreme left side mud portion of the road. The
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C.R.P.(PD).Nos.384 to 388 of 2017
passengers alighted and were waiting on the mud portion in the extreme
left side of the road to travel by another Bus. At that time, the driver of
the Lorry drove the Lorry, insured with the United India Insurance
Company, in a rash and negligent manner, lost control of the vehicle and
dashed against the deceased from backside. As a result, the deceased
sustained multiple injuries and died on the spot. In other Civil Revision
Petitions (M.C.O.P.Nos.7701 of 2013, 248 of 2014, 371 of 2014 and 738
of 2014), the injured claimants have stated that the Lorry, driven by its
driver, in a rash and negligent manner, dashed on the back side of the
Bus. Due to the impact, the Bus moved and claimants who were standing
in front of the Bus got injured.
5.The learned Judge, considering the materials in the affidavit filed
in support of the above M.Ps., counter affidavits and stage of the
M.C.O.Ps., held that the Miscellaneous Petitions filed by the Insurance
Company is only to protract the claim petitions and dismissed all the
Miscellaneous Petitions by separate orders.
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C.R.P.(PD).Nos.384 to 388 of 2017
6.Against the said orders dated 15.09.2015 made in M.P.Nos.46 to
50 of 2015 respectively in M.C.O.P.Nos.5276 of 2013, 7701 of 2013, 248
of 2014, 371 of 2014 and 738 of 2014, the Insurance Company has come
out with the present Civil Revision Petitions.
7.The learned counsel appearing for the Insurance Company
contended that there are two vehicles involved in the accident. The
claimants have filed the claim petitions only against the owner, driver
and insurer of the Lorry. After trial, if the Tribunal comes to the
conclusion that the driver of the Bus also is responsible for the accident,
the claimants will be entitled only to a portion of the award amount fixed
by the Tribunal. On the other hand, if the State Express Transport
Corporation Limited is impleaded as a party respondent in M.C.O.Ps., the
claimants will receive the entire compensation awarded by the Tribunal.
Only when the State Express Transport Corporation is impleaded, the
Tribunal can fix intense liability between the drivers of two vehicles. The
Insurance Company has filed M.P.Nos.46 to 50 of 2015 only for the
benefit of the claimants and he relied on the following judgments in
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C.R.P.(PD).Nos.384 to 388 of 2017
support of his contentions:
(i) 2015 (1) TN MAC 801 (SC) [Khenyei Vs. New India
Assurance Company Ltd., and others]:
“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
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C.R.P.(PD).Nos.384 to 388 of 2017
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 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.”
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C.R.P.(PD).Nos.384 to 388 of 2017
(ii) 2005 (2) TN MAC (Ker.) (DB) 390 [Sasidharan Vs.
Sukumaran]:
“4..................In the case decided in 1993 (2) KLT 777,
only driver was not impleaded. But, owner was impleaded.
Owner is liable for the liability only to the extent of negligence
of the driver. Therefore, driver and owner of the same vehicle are
the joint tortfeasors. Owner and driver of another vehicle
involved in the accident can only be one of the several
tortfeasors. If two vehicles are involved and only if one vehicle's
driver and owner are made parties, no liability can be cast on
the other party directly or indirectly without impleading
them.....................”
8.Per contra, the learned counsel appearing for the claimants in
C.R.P.Nos.384 to 388 of 2017 separately submitted that according to the
claimants, the accident occurred only due to rash and negligent driving
by the driver of the Lorry. The driver of the Lorry dashed on the backside
of the Bus which was parked on the mud road, with triangle signal. Due
to the said impact, the claimants in C.R.P.Nos.385 to 388 of 2017 got
injured and one person died. Even if the Tribunal comes to the
conclusion that both the driver of the vehicles are responsible for the
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C.R.P.(PD).Nos.384 to 388 of 2017
accident, the claimants can claim entire award amount from the Insurance
Company, owner and driver of the Lorry and it is for the Insurance
Company to claim the amount from the State Express Transport
Corporation Limited. For this proposition, the learned counsel appearing
for the claimants relied on the very same judgment reported in 2015 (1)
TN MAC 801 (SC) (cited supra) and submitted that the Insurance
Company filed the present petitions only to protract the proceedings. The
learned counsel appearing for the claimants further contended that as per
the judgment of the Hon'ble Apex Court referred to above, the claimants
in case of composite negligence 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. The learned counsel appearing for
the claimants further contended that in the instant case, the accident
occurred only due to rash and negligent driving by driver of the Lorry
and only respondents in claim petitions are liable to pay compensation.
9.The learned counsel appearing for the State Express Transport
Corporation Limited contended that the Bus owned by the State Express
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C.R.P.(PD).Nos.384 to 388 of 2017
Transport Corporation Limited, due to mechanical defect, broke down,
driver of the Bus parked the Bus on the extreme left side of the road with
triangle signal to indicate parking of the Bus. The accident occurred only
due to rash and negligent driving by driver of the Lorry. The driver of the
Bus was not responsible for the accident and prayed for dismissal of the
Civil Revision Petitions.
10.Heard the learned counsel appearing for the Insurance
Company, claimants as well as the State Express Transport Corporation
Limited and perused the entire materials available on record.
11.It is the specific case of the claimants that when the Bus in
which the claimants and the deceased person were travelling broke down,
the driver of the Bus parked the Bus in the extreme left side mud portion
of the road and the claimants and the deceased person were waiting in the
mud portion in front of the Bus for spare Bus. At that time, the driver of
the Lorry dashed on the backside of the Bus, as a result, the Bus moved
and the claimants and victim were injured. To prove the said contention,
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C.R.P.(PD).Nos.384 to 388 of 2017
it is for the claimants to let in acceptable evidence before the Tribunal. It
is open to the petitioner to let in oral and documentary evidence to prove
their case that the driver of the Lorry was not responsible for the accident
and driver of the Bus alone was responsible for the accident. The
claimants, on specific averments, have filed claim petitions against the
driver, owner and insurer of the Lorry. It is for the claimants to choose
the party against whom they make a claim and prove the averments made
in the claim petition. The Insurance Company, who is the insurer of the
Lorry has no locus-standi to seek to implead the State Express Transport
Corporation Limited as a party respondent in the M.C.O.Ps. The learned
counsel appearing for the Insurance Company contended that the
Insurance Company has filed the present M.Ps. only for the benefit of the
claimants. According to the learned counsel appearing for the Insurance
Company, even if the Tribunal comes to the conclusion that both the
drivers of the Lorry and Bus are responsible for the accident, the
claimants will not receive the entire amount awarded. On the other hand,
the learned counsel appearing for the claimants contended that even if the
Tribunal fixes liability on both the drivers, the claimants can receive the
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C.R.P.(PD).Nos.384 to 388 of 2017
entire amount from any one of the tort-feasor. In view of the specific plea
taken by the claimants, the judgments relied on by the learned counsel
appearing for the Insurance Company do not advance their case. The
judgment of the Hon'ble Apex Court, reported in 2015 (1) TN MAC 801
(SC) cited supra, is squarely applicable to the proposition now advanced
by the learned counsel appearing for the claimants. The learned Judge
has considered all the materials in its proper perspective and dismissed
all the M.Ps., filed by the Insurance Company. There is no error or
irregularity in the orders of the learned Judge, warranting interference by
this Court.
In the result, all the Civil Revision Petitions are dismissed. No
costs. Consequently, connected Miscellaneous Petitions are closed.
08.10.2021
Index :: Yes/No
gsa
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C.R.P.(PD).Nos.384 to 388 of 2017
To
1.The Managing Director,
State Express Transport Corporation Ltd.,
Pallavana Salai,
Chennai 600 002.
2.The II Special Subordinate Judge,
MACT, Chennai.
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C.R.P.(PD).Nos.384 to 388 of 2017
V.M.VELUMANI, J.
gsa
C.R.P.(PD).Nos.384 to 388 of 2017
08.10.2021
https://www.mhc.tn.gov.in/judis/
