High Court
Legal Reasoning
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD962 WRIT PETITION NO. 2067 OF 2023Miss Arpita d/o Tukaram Panchal,Age 11 years, Occupation Educaiton,Through her Father (Natural Guardian)Tukaram s/o Gopinath Panchal,R/o Somvanshi Nagar, AmbejogaiRoad, Arvi Area, Latur, Dist. Latur...Petitioner(Original Claimant)VERSUS1)Ramchandra s/o Shrimantra Dhoble,Age 33 years, Occupation Driver,R/o Hisambad (Ujed), Tq.Shirur(Anantapal), Dist.Latur.2)M/s Rahul Tours And Travels,Through Its Pro. Rahul Mane,Age Major, Occupation Business,R/o Row H. No.G-6, LakshyadeepHousing Society, Indrayani Nagar,Bjosari, Pune.3)The New India Assurance Com.Ltd.Through Its Branch Manager,R/o Near Ashvini Hospital,Ausa Road, Latur...Respondents...Advocate for the Petitioner : Mr. Lakhotiya Pawan K.Advocate for Respondent No.3 : Mr. S. R. Bodade...WITHWRIT PETITION NO. 2068 OF 2023 Master Yash s/o Tukaram Panchal,Age 7 years, Occupation Education,Through his Father (Natural Guardian)Tukaram s/o Gopinath Panchal,R/o Somvanshi Nagar, AmbejogaiRoad, Arvi Area, Latur, Dist. Latur...Petitioner(Original Claimant)VERSUS 2962 WP 2067-20231)Ramchandra s/o Shrimantra Dhoble,Age 33 years, Occupation Driver,R/o Hisambad (Ujed), Tq.Shirur(Anantapal), Dist.Latur.2)M/s Rahul Tours And Travels,Through Its Pro. Rahul Mane,Age Major, Occupation Business,R/o Row H. No.G-6, LakshyadeepHousing Society, Indrayani Nagar,Bjosari, Pune.3)The New India Assurance Com.Ltd.Through Its Branch Manager,R/o Near Ashvini Hospital,Ausa Road, Latur...Respondents...Advocate for the Petitioner : Mr. Lakhotiya Pawan K.Advocate for Respondent No.3 : Mr. S. R. Bodade...WITHWRIT PETITION NO. 2071 OF 2023 Ayodhya w/o Tukaram Panchal,Age 30 years, Occupation Beauty Parlar,R/o Somvanshi Nagar, Ambejogai Road,Arvi Area, Latur, Dist. Latur. ..Petitioner(Original Claimant)VERSUS1)Ramchandra s/o Shrimantra Dhoble,Age 33 years, Occupation Driver,R/o Hisambad (Ujed), Tq.Shirur(Anantapal), Dist.Latur.2)M/s Rahul Tours And Travels,Through Its Pro. Rahul Mane,Age Major, Occupation Business, 3962 WP 2067-2023R/o Row H. No.G-6, LakshyadeepHousing Society, Indrayani Nagar,Bjosari, Pune.3)The New India Assurance Com.Ltd.Through Its Branch Manager,R/o Near Ashvini Hospital,Ausa Road, Latur...Respondents...Advocate for the Petitioner : Mr. Lakhotiya Pawan K.Advocate for Respondent No.3 : Mr. S. R. Bodade ... CORAM : ARUN R. PEDNEKER, J.Dated : March 01, 2024ORAL JUDGMENT :-1.Rule. Rule made returnable forthwith. With consent of partiesheard finally.2.The learned Advocate for the petitioners submits that the claim isfiled by the injured for an accident that occurred on 23/12/2018 whilethe claimants were travelling in the vehicle bearing No.MH-12/AF-1170and it met with an accident with the vehicle bearing No.MH-14/FC-2633. The occupants of the vehicle No.MH-12/AF-1170 filed a claimagainst the owner and insurance company of the vehicle No.MH-14/FC-2633. In the claim petition filed by the injured against the owner andthe insurance company of vehicle MH-14/FC-2633 the Insurance 4962 WP 2067-2023Company-respondent No.3 filed an application below Exhibit 22 seekingdirections be given to the claimant, to add the driver of the vehiclebearing No.MH-12/AF-1170 as party respondent.3.It is contended in the application filed by respondent No.3 thatthe accident occurred due to rash and negligent driving of the driver ofthe car bearing No.MH-12/AF-1170. The First information Report andCharge-sheet is filed against the said driver of the car. As such, thedriver of the car bearing No.MH-12/AF-1170 be added as party.4.Per contra, the claimant opposed the application filed byrespondent No.3 contending that in the case of composite negligence, itis the choice of the claimant to sue either of the negligent party orboth. The application filed by respondent No.3 at Exhibit 22 is partyallowed by order dated 24/11/2021 wherein the Tribunal passed thefollowing order :-“2.Claimant is directed to join Tukaram GopinathPanchal, Age 36 years, Occu. Carpenter, R/o. SomwanshiNagar, Arvi Area, Latur i.e. the driver of the Maruti Carbearing No.MH-12/AF-1170 as respondent No.4 in claimpetition within the period of 14 days and to furnish theamended copy of the claim petition.”Against the order as above, the present petitions are filed.5.The petitioners contends that it is the choice of the applicant in a 5962 WP 2067-2023case of composite negligence to proceed against either one of thevehicle involved in the accident or if can sue both and that he is notrequired to make both the Insurance Company and vehicle ownersparty to the claim petition. He relies upon the Judgment in KhenyeiVersus New India Assurance Co. Ltd. AND Ors., reported in 1959 SCC273.6.Per Contra, the learned Advocate appearing for the InsuranceCompany submits that the charge-sheet particularly points out that thevehicle MH-12/AF-1170 is responsible for the accident and that thedriver of the said vehicle should be made party for properdetermination of the claim. He further submits that the charge-sheetfiled indicate that it is only the driver of the vehicle bearingNo.MH-12/AF-1170 is responsible for the accident and thus should bemade party to the claim petition.7.Having heard the learned Advocate for the parties. Perused theJudgment of Khenyei (Supra), paragraph 14 and paragraph 18 of theJudgment reads as under :-“14. There is a difereene betweee noetributory aednomposite eegligeene. Ie the nase of noetributoryeegligeene, a persoe who has himself noetributed to theexteet naeeot nlaim nompeesatioe for the iejuriessustaieed by him ie the annideet to the exteet of his owe 6962 WP 2067-2023eegligeene; whereas ie the nase of nompositeeegligeene, a persoe who has sufered has eotnoetributed to the annideet but the outnome ofnombieatioe of eegligeene of two or more other persoes.This Court ie T.O.Aethoey v. Karvareae & Ors. [2008 (3)SCC 748] has held that ie nase of noetributoryeegligeene, iejured eeed eot establish the exteet ofrespoesibility of eanh wroeg doer separately, eor is iteenessary for the nourt to determiee the exteet ofliability of eanh wroeg doer separately. It is oely ie thenase of noetributory eegligeene that the iejured himselfhas noetributed by his eegligeene ie the annideet. Exteetof his eegligeene is required to be determieed asdamages renoverable by him ie respent of the iejurieshave to be reduned ie proportioe to his noetributoryeegligeene. The relevaet portioe is extranted hereueder :“6. 'Composite eegligeene' refers to the eegligeeneoe the part of two or more persoes. Where apersoe is iejured as a result of eegligeene oe thepart of two or more wroeg doers, it is said that thepersoe was iejured oe annouet of the nompositeeegligeene of those wroeg-doers. Ie sunh a nase,eanh wroeg doer, is joietly aed severally liable tothe iejured for paymeet of the eetire damages aedthe iejured persoe has the nhoine of proneediegagaiest all or aey of them. Ie sunh a nase, theiejured eeed eot establish the exteet ofrespoesibility of eanh wroeg-doer separately, eor is 7962 WP 2067-2023it eenessary for the nourt to determiee the exteetof liability of eanh wroeg- doer separately. Oe theother haed where a persoe sufers iejury, partlydue to the eegligeene oe the part of aeotherpersoe or persoes, aed partly as a result of his oweeegligeene, thee the eegligeene of the part of theiejured whinh noetributed to the annideet isreferred to as his noetributory eegligeene. Wherethe iejured is guilty of some eegligeene, his nlaimfor damages is eot defeated merely by reasoe ofthe eegligeene oe his part but the damagesrenoverable by him ie respent of the iejuries staedsreduned ie proportioe to his noetributoryeegligeene.”7. Therefore, whee two vehinles are ievolved ie aeannideet, aed oee of the drivers nlaimsnompeesatioe from the other driver allegiegeegligeene, aed the other driver deeies eegligeeneor nlaims that the iejured nlaimaet himself waseegligeet, thee it benomes eenessary to noesiderwhether the iejured nlaimaet was eegligeet aed ifso, whether he was solely or partly respoesible forthe annideet aed the exteet of his respoesibility,that is his noetributory eegligeene. Thereforewhere the iejured is himself partly liable, theprieniple of 'nomposite eegligeene' will eot applyeor nae there be ae automatin iefereene that theeegligeene was 50:50 as has beee assumed ie this 8962 WP 2067-2023nase. The Tribueal ought to have examieed theexteet of noetributory eegligeene of the appellaetaed thereby avoided noefusioe betweee nompositeeegligeene aed noetributory eegligeene. The HighCourt has failed to norrent the said error.”“18. This Court ie Challa Bharathamma & Naejappae(supra) has dealt with the breanh of poliny noeditioes bythe oweer whee the iesurer was asked to pay thenompeesatioe fxed by the tribueal aed the right torenover the same was givee to the iesurer ie theexenutieg nourt noenereed if the dispute betweee theiesurer aed the oweer was the subjent-matter ofdetermieatioe for the tribueal aed the issue has beeedenided ie favour of the iesured. The same aealogy naebe applied to the iestaet nases as the liability of the joiettort feasor is joiet aed several. Ie the iestaet nase, thereis determieatioe of ieter se liability of nompositeeegligeene to the exteet of eegligeene of 2/3rd aed 1/3rdof respentive drivers. Thus, the vehinle – trailor-trunkwhinh was eot iesured with the iesurer, was eegligeet tothe exteet of 2/3rd. It would be opee to the iesurer beiegiesurer of the bus after makieg paymeet to nlaimaet torenover from the oweer of the trailor-trunk the amouet tothe aforesaid exteet ie the exenutioe proneediegs. Hadthere beee eo determieatioe of the ieter se liability forwaet of evideene or other joiet tort feasor had eot beeeimpleaded, it was eot opee to settle sunh a dispute aedto renover the amouet ie exenutioe proneediegs but the 9962 WP 2067-2023remedy would be to fle aeother suit or appropriateproneediegs ie annordaene with law. What emerges from the aforesaid disnussioe is as follows : (i) Ie the nase of nomposite eegligeene, plaietif/nlaimaetis eetitled to sue both or aey oee of the joiet tort feasorsaed to renover the eetire nompeesatioe as liability ofjoiet tort feasors is joiet aed several.(ii) Ie the nase of nomposite eegligeene, apportioemeetof nompeesatioe betweee two tort feasors vis a vis theplaietif/nlaimaet is eot permissible. He nae renover athis optioe whole damages from aey of them.(iii) Ie nase all the joiet tort feasors have beee impleadedaed evideene is sufnieet, it is opee to the nourt/tribuealto determiee ieter se exteet of nomposite eegligeene ofthe drivers. However, determieatioe of the exteet ofeegligeene betweee the joiet tort feasors is oely for thepurpose of their ieter se liability so that oee may renoverthe sum from the other after makieg whole of paymeetto the plaietif/nlaimaet to the exteet it has satisfed theliability of the other. Ie nase both of them have beeeimpleaded aed the apportioemeet/ exteet of theireegligeene has beee determieed by the nourt/tribueal, iemaie nase oee joiet tort feasor nae renover the amouetfrom the other ie the exenutioe proneediegs.(iv) It would eot be appropriate for the nourt/tribueal todetermiee the exteet of nomposite eegligeene of the 10962 WP 2067-2023drivers of two vehinles ie the abseene of impleadmeet ofother joiet tort feasors. Ie sunh a nase, impleaded joiettort feasor should be left, ie nase he so desires, to suethe other joiet tort feasor ie iedepeedeet proneediegsafter passieg of the denree or award.”8.The Hon’ble Supreme Court in the case of Khenyei (Supra) hasheld that in the case of composite negligence, plaintiff/claimant isentitled to sue both or any one of the joint tort feasors and to recoverthe entire compensation as liability of joint tort feasors is joint andseveral. In case of the composite negligence, apportionment ofcompensation between two tort feasors vis-a-vis the plaintiff/claimantis not permissible. He can recover at his option whole damages fromany of them. The instant case is based on composite negligence andnot contributory negligence, by the occupants of the vehicle bearingNo.MH-12/AF-1170 and not by the driver of the said vehicle. As such,it is a case of composite negligence and the claimants have a right toseek claim to recover it from the insurance company and / or the owner/ driver of the vehicle No.MH-14/FC-2633.9.As such, the orders passed by the Tribunal directing the claimantto add driver of the vehicle MH-12/AF-1170 is erroneous and isaccordingly set aside, and all the three writ petitions are allowed and 11962 WP 2067-2023disposed of. 10.Rule is made absolute in above terms.11.The petitioners undertakes to pay deficit Court Fees within aweek.12.Certified Copy of the Judgment be issued after deposit of deficitCourt Fees.( ARUN R. PEDNEKER, J. )vj gawade/-.