Arpita Tukaram Panchal through Father Natural Guardian Tukaram Gopinath Panchal Vs Ramchandra Shrimantrav Dhoble and Others

2024:BHC-AUG:5340

IN THE JUDICATURE OF HIGH COURT AT BOMBAY BENCH AT AURANGABAD

962 WRIT PETITION NO. 2067 OF 2023

Miss Arpita d/o Tukaram Panchal, Age 11 years, Occupation Educaiton, Through her Father (Natural Guardian) Tukaram s/o Gopinath Panchal, R/o Somvanshi Nagar, Ambejogai Road, Arvi Area, Latur, Dist. Latur. ..Petitioner (Original Claimant)

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VERSUS

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1. Ramchandra s/o Shrimantra Dhoble, Age 33 years, Occupation Driver, R/o Hisambad (Ujed), Tq.Shirur (Anantapal), Dist.Latur.

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1. M/s Rahul Tours And Travels, Through Its Pro. Rahul Mane, Age Major, Occupation Business, R/o Row H. No.G-6, Lakshyadeep Housing Society, Indrayani Nagar, Bjosari, Pune.

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1. The New India Assurance Com.Ltd. Through Its Branch Manager, R/o Near Ashvini Hospital, Ausa Road, Latur. ..Respondents

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Advocate for the Petitioner : Mr. Lakhotiya Pawan K. Advocate for Respondent No.3 : Mr. S. R. Bodade

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WITH

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WRIT PETITION NO. 2068 OF 2023

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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, Ambejogai Road, Arvi Area, Latur, Dist. Latur. ..Petitioner

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(Original Claimant)

VERSUS

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1. Ramchandra s/o Shrimantra Dhoble, Age 33 years, Occupation Driver, R/o Hisambad (Ujed), Tq.Shirur (Anantapal), Dist.Latur.

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M/s Rahul Tours And Travels, Through Its Pro. Rahul Mane, Age Major, Occupation Business, R/o Row H. No.G-6, Lakshyadeep Housing 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 ...

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WITH

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WRIT PETITION NO. 2071 OF 2023

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Ayodhya w/o Tukaram Panchal, Age 30 years, Occupation Beauty Parlar, R/o Somvanshi Nagar, Ambejogai Road, Arvi Area, Latur, Dist. Latur. ..Petitioner

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(Original Claimant)

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VERSUS

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1. Ramchandra s/o Shrimantra Dhoble, Age 33 years, Occupation Driver, R/o Hisambad (Ujed), Tq.Shirur (Anantapal), Dist.Latur.

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1. M/s Rahul Tours And Travels, Through Its Pro. Rahul Mane, Age Major, Occupation Business,

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3

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R/o Row H. No.G-6, Lakshyadeep Housing Society, Indrayani Nagar, Bjosari, Pune.

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1. The New India Assurance Com.Ltd. Through Its Branch Manager, R/o Near Ashvini Hospital, Ausa Road, Latur. ..Respondents

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Advocate for the Petitioner : Mr. Lakhotiya Pawan K. Advocate for Respondent No.3 : Mr. S. R. Bodade

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CORAM : ARUN R. PEDNEKER, J.

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Dated : March 01, 2024

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ORAL JUDGMENT :-

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Rule. Rule made returnable forthwith. With consent of parties heard finally.

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The learned Advocate for the petitioners submits that the claim is filed by the injured for an accident that occurred on 23/12/2018 while the claimants were travelling in the vehicle bearing No.MH-12/AF-1170 and it met with an accident with the vehicle bearing No.MH-14/FC2633. The occupants of the vehicle No.MH-12/AF-1170 filed a claim against the owner and insurance company of the vehicle No.MH-14/FC2633. In the claim petition filed by the injured against the owner and the insurance company of vehicle MH-14/FC-2633 the Insurance

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Company-respondent No.3 filed an application below Exhibit 22 seeking directions be given to the claimant, to add the driver of the vehicle bearing No.MH-12/AF-1170 as party respondent.

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It is contended in the application filed by respondent No.3 that the accident occurred due to rash and negligent driving of the driver of the car bearing No.MH-12/AF-1170. The First information Report and Charge-sheet is filed against the said driver of the car. As such, the driver of the car bearing No.MH-12/AF-1170 be added as party.

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Per contra, the claimant opposed the application filed by respondent No.3 contending that in the case of composite negligence, it is the choice of the claimant to sue either of the negligent party or both. The application filed by respondent No.3 at Exhibit 22 is party allowed by order dated 24/11/2021 wherein the Tribunal passed the following order :-

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“2. Claimant is directed to join Tukaram Gopinath Panchal, Age 36 years, Occu. Carpenter, R/o. Somwanshi Nagar, Arvi Area, Latur i.e. the driver of the Maruti Car bearing No.MH-12/AF-1170 as respondent No.4 in claim petition within the period of 14 days and to furnish the amended copy of the claim petition.”

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Against the order as above, the present petitions are filed.

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The petitioners contends that it is the choice of the applicant in a

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case of composite negligence to proceed against either one of the vehicle involved in the accident or if can sue both and that he is not required to make both the Insurance Company and vehicle owners party to the claim petition. He relies upon the Judgment in Khenyei Versus New India Assurance Co. Ltd. AND Ors., reported in 1959 SCC 273.

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Per Contra, the learned Advocate appearing for the Insurance Company submits that the charge-sheet particularly points out that the vehicle MH-12/AF-1170 is responsible for the accident and that the driver of the said vehicle should be made party for proper determination of the claim. He further submits that the charge-sheet filed indicate that it is only the driver of the vehicle bearing No.MH-12/AF-1170 is responsible for the accident and thus should be made party to the claim petition.

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Having heard the learned Advocate for the parties. Perused the Judgment of Khenyei (Supra), paragraph 14 and paragraph 18 of the Judgment reads as under :-

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“14. There is a difereene betweee noetributory aed nomposite eegligeene. Ie the nase of noetributory eegligeene, a persoe who has himself noetributed to the exteet naeeot nlaim nompeesatioe for the iejuries sustaieed by him ie the annideet to the exteet of his owe

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eegligeene; whereas ie the nase of nomposite eegligeene, a persoe who has sufered has eot noetributed to the annideet but the outnome of nombieatioe 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 noetributory eegligeene, iejured eeed eot establish the exteet of respoesibility of eanh wroeg doer separately, eor is it eenessary for the nourt to determiee the exteet of liability of eanh wroeg doer separately. It is oely ie the nase of noetributory eegligeene that the iejured himself has noetributed by his eegligeene ie the annideet. Exteet of his eegligeene is required to be determieed as damages renoverable by him ie respent of the iejuries have to be reduned ie proportioe to his noetributory eegligeene. The relevaet portioe is extranted hereueder :

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“6. 'Composite eegligeene' refers to the eegligeene oe the part of two or more persoes. Where a persoe is iejured as a result of eegligeene oe the part of two or more wroeg doers, it is said that the persoe was iejured oe annouet of the nomposite eegligeene of those wroeg-doers. Ie sunh a nase, eanh wroeg doer, is joietly aed severally liable to the iejured for paymeet of the eetire damages aed the iejured persoe has the nhoine of proneedieg agaiest all or aey of them. Ie sunh a nase, the iejured eeed eot establish the exteet of respoesibility of eanh wroeg-doer separately, eor is

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it eenessary for the nourt to determiee the exteet of liability of eanh wroeg- doer separately. Oe the other haed where a persoe sufers iejury, partly due to the eegligeene oe the part of aeother persoe or persoes, aed partly as a result of his owe eegligeene, thee the eegligeene of the part of the iejured whinh noetributed to the annideet is referred to as his noetributory eegligeene. Where the iejured is guilty of some eegligeene, his nlaim for damages is eot defeated merely by reasoe of the eegligeene oe his part but the damages renoverable by him ie respent of the iejuries staeds reduned ie proportioe to his noetributory eegligeene.”

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7. Therefore, whee two vehinles are ievolved ie ae annideet, aed oee of the drivers nlaims nompeesatioe from the other driver allegieg eegligeene, aed the other driver deeies eegligeene or nlaims that the iejured nlaimaet himself was eegligeet, thee it benomes eenessary to noesider whether the iejured nlaimaet was eegligeet aed if so, whether he was solely or partly respoesible for the annideet aed the exteet of his respoesibility, that is his noetributory eegligeene. Therefore where the iejured is himself partly liable, the prieniple of 'nomposite eegligeene' will eot apply eor nae there be ae automatin iefereene that the eegligeene was 50:50 as has beee assumed ie this

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nase. The Tribueal ought to have examieed the exteet of noetributory eegligeene of the appellaet aed thereby avoided noefusioe betweee nomposite eegligeene aed noetributory eegligeene. The High Court has failed to norrent the said error.”

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“18. This Court ie Challa Bharathamma & Naejappae (supra) has dealt with the breanh of poliny noeditioes by the oweer whee the iesurer was asked to pay the nompeesatioe fxed by the tribueal aed the right to renover the same was givee to the iesurer ie the exenutieg nourt noenereed if the dispute betweee the iesurer aed the oweer was the subjent-matter of determieatioe for the tribueal aed the issue has beee denided ie favour of the iesured. The same aealogy nae be applied to the iestaet nases as the liability of the joiet tort feasor is joiet aed several. Ie the iestaet nase, there is determieatioe of ieter se liability of nomposite eegligeene to the exteet of eegligeene of 2/3rd aed 1/3rd of respentive drivers. Thus, the vehinle – trailor-trunk whinh was eot iesured with the iesurer, was eegligeet to the exteet of 2/3rd. It would be opee to the iesurer beieg iesurer of the bus after makieg paymeet to nlaimaet to renover from the oweer of the trailor-trunk the amouet to the aforesaid exteet ie the exenutioe proneediegs. Had there beee eo determieatioe of the ieter se liability for waet of evideene or other joiet tort feasor had eot beee impleaded, it was eot opee to settle sunh a dispute aed to renover the amouet ie exenutioe proneediegs but the

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remedy would be to fle aeother suit or appropriate proneediegs ie annordaene with law.

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What emerges from the aforesaid disnussioe is as follows :

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(i) Ie the nase of nomposite eegligeene, plaietif/nlaimaet is eetitled to sue both or aey oee of the joiet tort feasors aed to renover the eetire nompeesatioe as liability of joiet tort feasors is joiet aed several.

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(ii) Ie the nase of nomposite eegligeene, apportioemeet of nompeesatioe betweee two tort feasors vis a vis the plaietif/nlaimaet is eot permissible. He nae renover at his optioe whole damages from aey of them.

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(iii) Ie nase all the joiet tort feasors have beee impleaded aed evideene is sufnieet, it is opee to the nourt/tribueal to determiee ieter se exteet of nomposite eegligeene of the drivers. However, determieatioe of the exteet of eegligeene betweee the joiet tort feasors is oely for the purpose of their ieter se liability so that oee may renover the sum from the other after makieg whole of paymeet to the plaietif/nlaimaet to the exteet it has satisfed the liability of the other. Ie nase both of them have beee impleaded aed the apportioemeet/ exteet of their eegligeene has beee determieed by the nourt/tribueal, ie maie nase oee joiet tort feasor nae renover the amouet from the other ie the exenutioe proneediegs.

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(iv) It would eot be appropriate for the nourt/tribueal to determiee the exteet of nomposite eegligeene of the

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drivers of two vehinles ie the abseene of impleadmeet of other joiet tort feasors. Ie sunh a nase, impleaded joiet tort feasor should be left, ie nase he so desires, to sue the other joiet tort feasor ie iedepeedeet proneediegs after passieg of the denree or award.”

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The Hon’ble Supreme Court in the case of Khenyei (Supra) has held that 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. In case of the 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. The instant case is based on composite negligence and not contributory negligence, by the occupants of the vehicle bearing No.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 to seek claim to recover it from the insurance company and / or the owner / driver of the vehicle No.MH-14/FC-2633.

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As such, the orders passed by the Tribunal directing the claimant to add driver of the vehicle MH-12/AF-1170 is erroneous and is accordingly set aside, and all the three writ petitions are allowed and

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disposed of.

Rule is made absolute in above terms.

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The petitioners undertakes to pay deficit Court Fees within a week.

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Certified Copy of the Judgment be issued after deposit of deficit Court Fees.

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( ARUN R. PEDNEKER, J. )

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vj gawade/-.

Arpita Tukaram Panchal through Father Natural Guardian Tukaram Gopinath Panchal v. Ramchandra Shrimantrav Dhoble and Others

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Arpita Tukaram Panchal through Father Natural Guardian Tukaram Gopinath Panchal v. Ramchandra Shrimantrav Dhoble and Others

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