Rajasthan High Court

Cholamandalam Ms General ... vs Kumari Ishita Lalwani D/O Shri ... on 16 September, 2022

Bench: Mahendar Kumar Goyal

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 8824/2022

Cholamandalam Ms General Insurance Co. Ltd., Registered And
Head Office, "Dare House", II Floor, No. 234, N.S.C. Bose Road,
Chennai-600001 (Tamilnadu) (Insurer Of Truck No. HR-46-B-
7492) Through Insurance Cover Note No. 6896628 Validity
Period    From      05.03.2013         To     04.03.2014,         Issuing   Office
Chandigarh Having Its Regional Office At Unit No. 704-708,
Signature Tower, District Shopping Centre, Lalkothi, Tonk Road,
Jaipur-302015 Through Its Constituted Attorney.
                                                  ----Petitioner/Non-Claimant
                                     Versus
1.       Kumari Ishita Lalwani D/o Shri Mahendra Kumar Lalwani,
         Aged About 26 Years, (DOB 02.10.1996) R/o 5/24 S.F.S.,
         Agarwal Farm, Mansarovar, Jaipur-302020 (Raj.)
                                              .........Claimants-Non-Petitioner
2.       Ramesh Kumar S/o Shrilal, Aged About 54 Years, (DOB
         25.12.1968), R/o Imlota, Thana And Tehsil Charkhi Dadri,
         District Bhiwani (Haryana) (Owner And Driver Of Truck
         No. HR-46-B-7492)
                                            ----Non-Claimant-Non-Petitioner


For Petitioner(s)           :    Ms. Supriya Saxena with
                                 Mr. Prakhar Agrawal for
                                 Mr. Virendra Agarwal
For Respondent(s)           :    Mr. Vizzy Agarwal

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

16/09/2022

This writ petition under Article 227 of the Constitution of

India is directed against the order dated 04.05.2022 passed by

the learned Motor Accident Claim Tribunal, Jaipur District, Jaipur in

MACT Claim Case No.790/2017 (52/2016) whereby, an application

(2 of 6) [CW-8824/2022]

filed by the petitioner/Non-Claimant No.2 under Order 1 Rule 10

read with Section 151 CPC has been dismissed.

The relevant facts in brief are that the respondent

No.1/claimant filed a claim petition under Section 166 read with

Section 140 of the Motor Vehicles Act, 1988 against the petitioner

and the respondent No.2 seeking compensation on account of

injuries and permanent disablement suffered by her on account of

a road accident dated 26.03.2013 wherein, the car she was

travelling in, was hit by the truck being driven by the respondent

No.2. During the course of its evidence, the petitioner moved an

application under Order 1 Rule 10 read with Section 151 CPC

seeking impleadment of the car owner, car driver and its insurance

company as parties non-claimant, which has been dismissed by

the learned Tribunal vide its order dated 04.05.2022, impugned

herein.

Learned counsel for the petitioner, drawing attention of this

Court towards the cross-examination of the claimant and her

witnesses and the documentary evidence available on record,

submitted that the accident did not occur on account of rash and

negligent driving of the respondent No.2, driver of the truck; but,

on account of bursting of the car tyre which resulted into the car

going to the other side of the road crossing the divider. She

submitted that in the aforesaid circumstances, when the truck

driver was not solely responsible for the accident and in order to

establish that it was a case of composite negligence, the

application filed by the petitioner ought to have been allowed by

the learned Tribunal. She, in support of her submissions, relied

upon a judgment of the Hon'ble Apex Court of India in case of

Khenyei Vs. New India Assurance Co.Ltd. & Ors., (2015) 9

(3 of 6) [CW-8824/2022]

SCC 273, and judgments of this Court in the cases of Rajasthan

State Road Transport Corporation Vs. Ram Lal & Ors., 2002

(2) T.A.C. 498 (Raj.), Cholamandalam Ms General

Insurance Co. Ltd. Vs. Garvit Jain & Anr.; S.B. Civil Writ

Petition No.19275/2017 & Kartar Singh Vs. Veerpal Kaur &

Ors., 2019 (1) ACTC (Raj.) 312. She also relied upon the

judgment of the Madras High Court in case of The Firm Of

Mahadeva Rice and Oil Mills by Partners Vs.

Jayaramakrishnan & Ors. Vs. Chennimalai Goundar, AIR

1968 Mad 287 to buttress her submission that impleadment of a

third party under Order 1 Rule 10 CPC is necessary if it facilitates

adjudication of the real controversy between the parties on

record. She, therefore, prays that the writ petition be allowed, the

order dated 04.05.2022 be quashed and set aside and the

application filed by the petitioner under Order 1 Rule 10 read with

Section 151 CPC be allowed.

Per contra, learned counsel for the respondent-claimant

submitted that even if it is assumed to be a case of composite

negligence, since, she was sitting in the back seat of the car

involved in the accident, it is her absolute choice to seek

compensation from both or either of the joint tortfeasors and she

cannot be compelled to litigate against both the joint tortfeasors,

even if it is so, against her wishes. He submitted that the claim

petition was filed way back in the year, 2016 whereas, the

application seeking impleadment of the alleged joint tortfeasors

has been filed as late as in the year, 2021 i.e. after a delay of five

years with no explanation for such inordinate delay. Learned

counsel submitted that trial is already over and the case is fixed

on 19.09.2022 for pronouncement of judgment. He, therefore,

(4 of 6) [CW-8824/2022]

prays for dismissal of the writ petition. He, in support of his

submissions, also relies upon the judgment in case of Khenyei

(supra) and judgments of this Court in cases of Sampat Kunwar

Bai & Anr. Vs. Gurmeet Singh & Anr., 1988 ACJ 342 &

Ramkishan Vs. Monu Khatik & Ors.: S.B. Civil Writ Petition

No.15558/2019.

Heard. Considered.

Indisputably, the claimant was sitting in the back seat of the

car involved in the accident and therefore, it cannot be a case of

contributory negligence. It is trite law that it is absolute discretion

of the claimant to seek compensation from both or either of the

joint tortfesors and he/she, therefore, cannot be compelled to

litigate against the any particular or both the joint tortfeasors

against his/her wishes.

Contention of the learned counsel for the petitioner that it

being a case of composite negligence, it was necessary to have

impleaded the joint tortfeasors as parties, flies in the face of

averments contained in the application filed by it under Order 1

Rule 10 read with Section 151 CPC wherein, it has been their

specific case that the accident occurred solely on account of rash

and negligent driving of the car driver and the accident was not

contributed in any manner by the truck driver.

The Hon'ble Apex Court of India has, in case of Khenyei

(supra) held as under:

"(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.

                                                 (5 of 6)                   [CW-8824/2022]

         (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."

From the aforesaid observations of their Lordships, it is

apparent that in case presence of all the joint tortfeasors in a

claim petition, facilitates determination of the extent of negligence

between the joint tortfeasors 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 claimant; however, in the present

case, as is apparent from the averments in the application, it has

(6 of 6) [CW-8824/2022]

not been a case of the petitioner-insurance company that it was a

case of composite negligence.

Even otherwise also, this Court is not inclined to interfere in

its limited supervisory jurisdiction directing impleadment of the