Somaram Hiralal Meghwal Deceased through Legal Heirs and Others vs Dipsinh and Another

M.D. Shah, J.—Admit. Mr. Sanjay Suthar, learned advocate waives service of notice of admission on behalf of respondent No. 1. Ms. Rahevar, learned advocate waives service of notice of admission on behalf of respondent No. 2. With the consent of the learned advocates, the appeal is finally decided as legal point involved in this appeal is covered by the judgment of the Division Bench of this Court in the case of Kusumben Vipinchandra Shah and Another Vs. Arvindbhai Narmadashankar Raval and Others, By this appeal, the appellant - original claimants are challenging the judgment and award dated 12.08.2011 passed by the learned M.A.C. Tribunal (Auxi.), Kheda at Nadiad in M.A.C.P. No. 230 of 2007.

It is the case of the claimants that accident took place on 04.01.2000 at about 2.00 in the mid night between Jeep No. RJ - 24 T 817 and one unknown truck and in the said accident, the deceased Somaram Meghwal who was travelling as passenger in the jeep received serious injuries and succumbed to injuries. Hence claim petition was filed by the legal heirs of the deceased for getting compensation of Rs. 5,00,000/- u/s 163(A) of the Motor Vehicle Act. After recording evidence, Tribunal came to the conclusion that driver of the truck was 30% negligent and driver of the jeep was 70% negligent for the accident and held that claimants are entitled to get compensation of Rs. 2,92,250/- (i.e. 70% negligent of driver of the jeep) with running interest of 7.5 % per annum from the date of claim petition and did not award Rs. 1,25,250/- (i.e. 30% negligent of driver of the truck) as driver, owner and insurance company of the truck were not joined as party.

It is submitted by learned advocate for the appellant - original claimants that Tribunal has not properly appreciated documentary and oral evidence adduced by the appellant. It is also submitted that it is a case of composite negligence. He has relied on the decision of this Court in the case of Kasumben Vipinchandra Shah (supra). Therefore, it is requested to allow this appeal.

It is submitted by learned advocate for the respondents that award passed by the Tribunal is just and proper and not required to be interfered by this Court and so it is requested to dismiss the appeal.

This Court has gone through the judgment and award dated 12.08.2011 passed by the learned Tribunal together with oral as well as documentary evidence on record.

It is admitted fact that accident took place in odd hours between jeep and truck. Complaint is lodged by the driver of the jeep against the driver of the truck and driver of the jeep is not examined by any of the party. It is also admitted fact that deceased was travelling in the jeep as passenger and so he is third party as far as truck is concerned. When no evidence is placed on record in reference to point of negligence then it is the case of composite negligence where accident took place because of negligence of both the drivers. The issue involved in this case is covered by the decision of this Court in the case of Kasumben Vipinchandra Shah (supra). In para 5 and 6 of the said decision Division Bench has observed as under:-

In Amarsi Jugabhai & Ors. vs. Vijayaben Hemantlal Dhulia, 1996 (1) GLH 1007 : 1996 (3) GLR 493, this Court was concerned with a similar controversy involving the accident between a truck and a car. The claim petition was filed only against the driver/owner/insurer of the truck without impleading either the heirs of the driver-cum-owner of the car who died in the accident or the Insurance Company with which the said car was insured. The Tribunal found that the accident took place on account of composite negligence of the truck driver and the deceased car driver determined by the Tribunal in the ratio of 75:25 percent respectively. The Tribunal fastened joint and several liability to satisfy the award of the entire compensation amount on the driver/owner/insurer of the truck. The driver/owner/insurer of the truck filed First Appeal before this Court contending that in view of the specific plea raised by the appellants before the trial Court that the driver/owner/insurer of the car were necessary parties, the Tribunal ought not to have made the award against the insurer of the truck to pay the entire amount of compensation.

After examining all the previous decisions of this Court and also the leading books on the subject, including Pollock, the Division Bench held that where a person is injured without his own negligence but on account of the negligence of the two drivers of the colliding vehicles, it is a case of composite negligence and the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rule as to remoteness of damage, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty or contribution or indemnity as between those persons, though in any case he cannot recover in the whole more than his whole damages. He has a right to recover the full amount of damage from any of the joint tort-feasors. Those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tort-feasors is joint and several. Every wrong doer is liable for the whole damage and it does not matter whether they acted between themselves as equals. This Court further held that the defendant who is compelled to pay the entire amount of damages decreed has a right to contribution from the other wrong doer. The liability in the case of composite negligence, normally should not be apportioned, as both wrong doers are jointly and severally liable for the whole loss. Rule of apportionment of liability applies in a case of contributory negligence, i.e. where the injured himself is also guilty of negligence.

The Division Bench also dealt with the discordant note sounded in Gujrat State Road Transport Corporation Vs. Gurunath Shahu and Others, and held that when the opponents in the claim petition apply for bringing the other joint tort-feasor on record, the Tribunal should normally allow such application but the claim petition does not cease to be maintainable merely because all the joint tort-feasors are not joined as party defendants. It further held that the finding given by the Tribunal in such a case regarding apportionment of liability would be tentative for the purpose of subsequent proceeding which may be filed by the defendant tort-feasor against the other joint tort-feasor who was not a party to the first proceeding. But this tentativeness for the purpose of contribution between two joint tort-feasors does not at all affect the right of the plaintiff-claimant to recover the full damages from the defendant tort-feasor against whom the first proceeding is filed.

Considering the decision in the case of Kasumben Vipinchandra Shah (supra) and as discussed above deceased was travelling as passenger, he is entitled to get compensation of Rs. 4,17,500/- from all the opponents as it is the case of composite negligence. Tribunal has already awarded Rs. 2,92,250/- to the claimants and therefore, now the claimants are entitled to get Rs. 1,25,250/- as additional compensation.

So far as quantum is concerned, considering age and income of the deceased and considering Schedule II of the Motor Vehicle Act, Tribunal has awarded just and adequate compensation which is not required to be interfered with by this Court. In view of above, the appeal is partly allowed. The original claimants are entitled to get compensation of Rs. 1,25,250/- as additional compensation with interest @ 7.5 per annum on the said amount. It is also held that original claimants are entitled to recover the said additional amount jointly and severally from all the respondents herein. Judgment and award dated 12.08.2011 passed by the learned M.A.C. Tribunal (Auxi.), Kheda at Nadiad in M.A.C.P. No. 230 of 2007 is modified to the aforesaid extent. The remaining part of the judgment and award would remain unaltered. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith.