Rajasthan High Court - Jodhpur
National Insurance Co. Ltd vs Kaluram And Ors. (2025:Rj-Jd:9040) on 13 February, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:9040]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1656/2014
National Insurance Co. Ltd., N.H. 15, Sriganganagar through
Deputy Manager, National Insurance Company Limited, Jodhpur
Regional Office: 3-4 Floor, Sun Tower, Main Pal Road, Jodhpur.
----Appellant
Versus
1. Kaluram s/o Rajaram, R/o Ward No.10, Ramsinghpur, Tehsil -
Anoopgarh, District - Sriganganagar.
2. Savitri w/0 Kaluram, R/o Ward No.10, Ramsinghpur, Tehsil -
Anoopgarh, District - Sriganganagar.
(Claimanats)
3. Madanlal s/o Omprakash, Kunpali, Tehsil - Srivijaynagar,
District - Sriganganagar. (Owner of Three Wheeler)
4. Sukhveer Singh @Kala s/o Resham Singh, r/o Bhagsar, Tehsil
- Srivijaynagar, District - Sriganganagar. (Driver of Three
Wheeler)
----Respondents
For Appellant(s) : Mr. Shubhankar Johari for Mr. Sanjeev
Johari, Sr. Advocate
For Respondent(s) : Mr. Rakesh Chotia for Owner
Mr. DS Thind for Claimants
HON'BLE DR. JUSTICE NUPUR BHATI
Order
13/02/2025
1. The instant civil misc. appeal has been preferred by the
appellant under Section 173 of the Motor Vehicles Act, 1988 ('MV
Act') assailing the judgment and award dated 17.07.2014 passed
by learned Judge, Motor Accident Claims Tribunal Anoopgarh,
District Sriganganagar, ('learned Tribunal') in Claim Case
No.33/2010 whereby the learned Tribunal partly allowed the claim
petition filed by the claimants and awarded compensation of
Rs.2,50,000/-, in favour of claimants along with interest @6% p.a.
while fastening the liability upon the respondent No.3.
[2025:RJ-JD:9040] (2 of 5) [CMA-1656/2014]
2. Brief facts of the case are that on 15.05.2010 at about 02:00
pm, Shyamlal (Aged 13 years) was traveling in Three Wheeler
bearing registration No.RJ13 PA 2065 ('the three wheeler') in
capacity of passenger to Ramsinghpur Mandi. The respondent
no.4-driver of three wheeler while trying to overtake a tractor
trolley, collided with one Jeep bearing registration no.RRC 4620
('the Jeep') coming from opposite side. As a result of the accident,
Shyamlal suffered injuries and succumbed to injuries during the
course of treatment. Subsequently, the claimants (parents of
Shyamlal) filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 before the learned Tribunal seeking
compensation of account of death of Shyamlal ('deceased').
3. The appellant-insurance company, respondent No.3-owner
and respondent no.4-driver filed their separate reply to the claim
petition while denying the averments made in the claim petition.
4. On the basis of the pleadings, the learned Tribunal framed
four issues. Oral as well as documentary evidences were produced
by the claimants in support of their claim petition and on the other
hand some evidence were produced by the appellant-insurance
company as well as respondent Nos.3 & 4. After hearing all the
parties, the learned Tribunal partly allowed the claim petition vide
judgment and award dated 17.04.2014 ('impugned award') and
awarded compensation to the tune of Rs.2,50,000/- along with
interest @6% in favour of the claimants while fastening the
liability to pay compensation on the appellant-insurance company.
Aggrieved by the same instant misc. appeal has been preferred by
the appellant-insurance company.
[2025:RJ-JD:9040] (3 of 5) [CMA-1656/2014]
5. Learned counsel for the appellant-insurance company
restricts his submission only in respect to contributory negligence
on the part of the driver of the Jeep. He submits that the driver of
Jeep was equally responsible for the cause of accident and
chargesheet was also filed against him, however, the learned
tribunal ignored this fact and fastened the entire liability on the
appellant-insurance company.
6. Learned counsel for the respondents refutes the submission
made by the appellant-insurance company.
7. Heard and perused the material available on record.
8. This court finds that deceased was traveling in the three
wheeler in capacity of a passenger and the accident in the case at
hand occurred due to head on collision between the three wheeler
and the Jeep, thus, the question of contributory negligence does
not arise qua the deceased. Therefore, it is not a case of
contributory negligence but at best of composite negligence.
However, the claimants have impleaded only the driver, owner and
insurance company of the three wheeler. And the position of law in
this regard is well settled that in case of composite negligence the
claimants are entitled to sue all of the joint tort feasors or any of
them and to recover the entire compensation. The reference in
this regard can be taken from the judgment passed by the Hon'ble
Supreme Court in the case of Khenyei vs. New India
Assurance Co. Ltd. and Ors. MANU/SC/0582/2015 wherein
the Hon'ble Supreme Court has held summarised the position of
law as under:
[2025:RJ-JD:9040] (4 of 5) [CMA-1656/2014]
"18. .....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-à-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."
9. In the present case the claimants have chosen to implead
only the driver, owner of the three wheeler insured by appellant-
insurance company and the learned tribunal after perusing the
material available on record has passed the impugned award in
[2025:RJ-JD:9040] (5 of 5) [CMA-1656/2014]
favour of the claimants while fastening the liability on the
appellant-insurance company to pay the compensation, thus,
claimants are entitled to recover the entire compensation from the
appellant-insurance company in the light of the ratio as laid down
by the Hon'ble Supreme Court in Khenyie (Supra).
10. Therefore, in view of the above, the instant misc. appeal
being devoid of any merit is dismissed.
11. Pending application (s), if any, shall also stand dismissed.
(DR. NUPUR BHATI),J
surabhii/93-
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