Mr. Kanwar Kochhar, Adv. ANSH SAIN v. Through

O R D E R 28.01.2025

1. The present petition has been filed challenging the order dated 28.03.2024 (hereafter ‘impugned order’) passed by the learned Presiding Officer, Motor Accident Claims Tribunal (hereafter ‘MACT’), Rohini Courts, Delhi in MACT No. 563/2019, whereby the application filed by the petitioner/ Respondent No. 3, under Order I Rule 10 of the Code of Civil Procedure, (‘CPC’) seeking impleadment of the owner and insurer of the Baleno Car bearing No. DL2CAX-2933, being driven by the deceased namely– Late Sh. Aditya Gupta was dismissed.

2. The aforesaid claim petition came to be filed seeking compensation on account of injuries sustained in the accident which took place on 08.03.2019. As per the case of the petitioner, the accident took place due to the rash and negligent driving of the Baleno car driven by the deceased, in which the respondent was travelling, that hit the offending vehicle being CM(M) 2784/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2025 at 14:38:24 truck bearing No. HR55X0426 from behind.

3. The driver, owner and the insurer (petitioner herein) of the said truck were arrayed as respondents in the claim petition, wherein a Written Statement was filed by the petitioner taking the preliminary objection that the owner and insurer of the Baleno car were necessary parties and ought to have been impleaded as party respondents.

4. The petitioner also moved an application under Order I Rule 10 for impleading the owner of the Baleno car namely– Sh. Sachin and insurer namely– ICICI Lombard General Insurance Company Ltd. as Respondent No. 4 and 5 respectively. The learned MACT vide the impugned order, dismissed the application on the ground that it is the discretion of the claimants to sue both or any one of the joint tortfeasors to recover the compensation, based on the observations of the Hon’ble Apex Court in Khenyei v. New India Assurance Company Ltd. & Ors. : (2015) 9 SCC 273.

5. Being aggrieved by the impugned order passed by the learned MACT, the petitioner has approached this Court by way of the present petition.

6. The learned counsel for the petitioner submits that the impugned order is ex-facie perverse and contrary to the records of the case, and has been passed without application of mind.

7. He submits that the learned MACT has erroneously dismissed the application filed by the petitioner, without considering the judgement passed by the Hon’ble Apex Court in Nishan Singh v. Oriental Insurance Co. Ltd. : (2018) 6 SCC 765, wherein the Hon’ble Court held that the cause of the accident was the rash and negligent driving of the car which collided into the rear end of the truck, as the car failed in keeping CM(M) 2784/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2025 at 14:38:24 sufficient distance to avert collision.

8. He submits that the petitioner had filed the Written Statement, after scrutinizing the DAR, FIR, Chargesheet, Site Plan, Mechanical Inspection Report of both the accident vehicles, which clearly reveal that the accident was caused due to negligence on part of the deceased Aditya Gupta who was driving the Baleno car, and not that of the truck driver. He further submits that as per the MLC, the injured passengers were under the influence of alcohol and therefore there was composite negligence on part of the respondent.

9. He submits that once this defence was taken by the petitioner at the very initial stage, there was no justification for the learned MACT to have rejected the application filed by the petitioner for impleadment of the owner and insurer of the Baleno car.

10. Having considered the submissions of the learned counsel and perused the record, this Court finds that it is undisputed that the accident took place on account of the collision between two vehicles, i.e., the Baleno car bearing No. DL2CAX-2933 and the truck bearing No. HR55X0426.

11. The learned MACT was not justified in relying on the decision of the Hon’ble Apex Court in Khenyei (supra), wherein it was held that once the liability of the tortfeasors is determined to be joint and several, the claimants are entitled to claim entire compensation from all or any one of the joint tortfeasors.

12. The Hon’ble Apex Court in Khenyei (supra) was concerned with the issue whether it is open to a claimant to recover the entire amount from one of the joint tortfeasors when the accident is caused by the composite negligence of drivers of multiple vehicles and all of them have been found to be guilty. It CM(M) 2784/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2025 at 14:38:24 was held that in case of composite negligence, the claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors. It was, however, held that the liability of the joint tortfeasors is joint and several.

13. The Hon’ble Apex Court further held apportionment of the compensation between tortfeasors is not permissible and the claimant has to recover, at his option, whole damages from any one of them. The Hon’ble Apex Court held that in case all joint tortfeasors have been impleaded and evidence is sufficient, it is open to determine inter se extent of composite negligence so that one may recover the sum from the other after making the whole payment to the claimant.

14. It was further held that in case the joint tortfeasors are impleaded and the apportionment of their negligence determined, then one joint tortfeasor can recover the amount from the other in the execution proceedings.

15. Thus, the Hon’ble Apex Court recognized that joint tortfeasors can be impleaded in the claim filed by the victim / family. The purpose of impleading the joint tortfeasors is to avoid the multiplicity of proceedings.

16. Undisputedly, the claimant is entitled to claim the entire compensation from either or all the joint tortfeasors. However, when the proceedings before the learned MACT are at the initial stage, it is apposite that the joint tortfeasors are impleaded in the said proceedings when there is a possibility of determination as to the extent of negligence between the joint tortfeasors in order to fix the inter se liability, and the same would avoid any objections that may be taken by the unimpleaded joint tortfeasors at a later stage, regarding the liability fastened on them in the CM(M) 2784/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2025 at 14:38:24 ongoing proceedings before the learned MACT.

17. In the present case, the proceedings before the MACT are at a preliminary stage and therefore, this Court does not find that any impediment or any prejudice would be caused to the claimants if the ICICI Lombard General Insurance Company Ltd. and the owner of the Baleno car namely – Sh. Sachin, are impleaded in the proceedings.

18. The impugned order is accordingly set aside and ICICI Lombard General Insurance Company Ltd. and Sachin are impleaded as respondents in the ongoing proceedings in MACT No. 565/2019.

19. The petitioner is at liberty to approach the learned MACT with a copy of this order so that notice can be issued to the newly impleaded respondent without any delay, and the newly impleaded respondents are also granted opportunity to file their written statement at the earliest.

20. The present petition is allowed in the aforementioned terms.

21. Copy of the order be sent to concerned MACT for necessary compliance. JANUARY 28, 2025 AMIT MAHAJAN, J CM(M) 2784/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2025 at 14:38:24