Dismissed

New India Assurance Company Limited v. Eagal Trade Link Pvt. Ltd.

Gujarat HC21 Jun 2018SCA/11205/2017

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against an order of the Motor Accident Claim Tribunal which refused to remove the appellant insurance company from the cause title. The court held that modifications to the cause title must await the final trial where evidence can be adduced on whether the vehicle was actually involved.

What did the court decide?

Special Civil Applications dismissed; directions given to Tribunal to follow Supreme Court observations on composite negligence and fix liability based on trial evidence.

New India Assurance Company Limited Vs Eagal Trade Link Pvt. Ltd. — Insurance | Gujarat HC (2018)

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C/SCA/11202/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 11202 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 11203 of 2017 With

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R/SPECIAL CIVIL APPLICATION NO. 11204 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 11205 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 11206 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 11207 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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NEW INDIA ASSURANCE COMPANY LIMITED

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Versus

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EAGAL TRADE LINK PVT. LTD.

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Appearance:

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MR VIBHUTI NANAVATI(513) for the PETITIONER(s) No. 1 NOTICE SERVED(4) for the RESPONDENT(s) No. 1,2,3,4,5,6

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 21/06/2018

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COMMON ORAL JUDGMENT

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Heard learned advocate Mr.Vibhuti Nanavati for the

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Page 1 of 7

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C/SCA/11202/2017 JUDGMENT

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appellant and perused the record. The appellant is Insurance Company of one Truck tailer bearing registration No.RJ-19 GE- 8141. It seems that on 11.02.2016 one vehicular accident has taken place somewhere in Maharashtra and thereby, the victims of such road accident, who are joined as original claimant in all such petitions have preferred an application claiming compensation under the Motor Vehicles Act. Since, all such petitions are arising out of all such Motor Accident Claim Petition arising from the same accident, all such petitions are heard together and disposed of this common judgment. Since, except original claimant, rest of the litigants are common, so also the factual details, impugned order and the issues raised in all such petitions are common.

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At this stage, this Court has not decided the correctness of the factual details disclosed by the original claimants in their applications and therefore, all discussions and observations in this judgment is purely for limited purpose of deciding these petitions and therefore, it should not be considered as conclusive prove or evidence against the present petitioner in any manner whatsoever. I have reason to say so at initial stage because on one hand, it is the case of the original claimants that in such accident as many as three vehicles were involved i.e. one luxury bus (bearing registration No.GJ - 03 AX - 0089), one goods vehicle (bearing registration No. KA -20 D-3313), truck trailer - insured by the present petitioner (bearing registration no. RJ 19 GE 8141) whereas on other hand, it is the case of the present petitioner – insurer of the truck trailer – considering the nature of the incident and available evidence, in fact though there may be accident between the bus and goods vehicle, truck- trailer was never involved in such incident and however, because of

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Page 2 of 7

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C/SCA/11202/2017 JUDGMENT

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such accident on road at the relevant time, when driver of the truck- trailer has tried to avoid pass his vehicles with those vehicles (luxury bus – goods vehicle) which were lying on the road after the accident, he has applied his brake whereby truck trailer has just keep to one side of the road and stop nearby by the place where accident has taken place.

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In view of such pleadings, it is submitted that when truck trailer - insured by the petitioner has never involved in the accident, they may not be joined as opponent in the claim petitions filed by the original claimants.

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However, the record shows that petitioner has not only joined owner - insurer of all three vehicles, they have pleaded that truck trailer was also coming in full speed and involved in the incident.

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Though, such facts are yet to be proved before the Tribunal at the time of adducing evidence by all the parties, at this stage, it is made clear that this Court has not entered into appreciation of such factual details, which is only in the form of pleadings at this stage and thereby, Tribunal has to decide own its relying upon the evidence available adduced before it to scrutinize that whether truck trailer was also involved in the incident or not, without being influence by any discussions and observations in these petitions, when these petitions are otherwise dismissed for following reasons:-

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It seems that based upon above pleadings that truck trailer insured by the petitioner was not involved in the accident, petitioners have preferred application at Exh. 31 dated 16.01.2017 all claim petitions to delete the owner – insurer of the truck tailer no.RJ-19 GE-8141 of

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Page 3 of 7

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C/SCA/11202/2017 JUDGMENT

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the cause title of the claim petitions. However, Motor Accident Claim Tribunal(Main) Rajkot has passed by impugned judgment and order dated 07.04.2017 after considering the rival submissions of both the sides, categorically observed while rejecting such application that submissions of the opponent that his vehicle has not touched the other vehicles, cannot be decided at this stage without clear evidence and therefore, it was held that it would not be just and proper at this stage to delete the present appellant – insurance company from the proceeding and thereby, dismissed the application.

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I do not find any fault in such impugned order on several grounds including ground taken by the Motor Accident Claim Tribunal, Rajkot for the simple reason that at the prima facie stage, what is required to be seen by the Tribunal is disclosure that is pleadings in the form of petitions by the victims and if there is pleadings/allegations regarding involvement of any particular vehicle, it would not be appropriate for Tribunal to delete any insurer of such vehicle only because they came forward with the defence in the form of pleadings only at preliminary stage disclosing that their vehicles never involved in the incident. Therefore, Tribunal has rightly held that such issue cannot be decided without allowing all the parties to lead their evidence either to prove or disprove or to rebut the evidence of other side. If at all, there is evidence that truck trailer insured by the petitioner was never involved but it was only because that it has stopped just near place of the accident, that too only case of the lying of vehicles involved in the accident on road, it cannot be said that owner – insurer of such vehicle also liable, however, such facts cannot be determined at such

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C/SCA/11202/2017 JUDGMENT

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preliminary stage but to confirm such situation, Tribunal has to allow the appellant to lead the evidence which the original claimants have pleaded that truck trailer is also involved in the accident.

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It is quite clear that during such trial, the present appellant would also get reasonable opportunity to prove that their vehicle is never involved in the accident but only because the defence version by the petitioner, they can be deleted from the cause title where deleting the petitioner against which may certainly results into irregularity and illegality. The Tribunal has taken care of such situation, may be in minimum words but it would not be scenario. Therefore, I do not find any reason to interfere with such impugned order.

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However, Mr.Nanavati, learned advocate for the petitioner has submitted his apprehension that in such cases sometimes when Tribunal fix compensate liability of all the tort-feasors ,it so happened that either appellant or negligence on the part of the vehicle insured by such petitioner, they have to pay fully amount of compensation. For such submissions, petitioner has referred the observations by full Bench of Hon'ble Supreme Court of India in the case of Khenyei V/s. New India Assurance Company Limited and others reported in (2015) 9 SCC 273 wherein Hon'ble Supreme Court has enumerated the possibilities regarding the fixation of liability of concerned tort-feasors in paragraph no.22 in following

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words:-

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“22. What emerges from the aforesaid discussion is as follows:

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22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint torfeasors is joint and several.

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C/SCA/11202/2017 JUDGMENT

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22.2. in the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible, He can recover at his option whole damages from any of them

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22.3 In case all the joint tortfeasors 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 tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the 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 the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

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22.4.It would not be appropriate for the court/Tribunal to determinate the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasors in independent proceedings after passing of the decree or award.”

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Therefore, at the most it may be appropriate to convey the concerned tribunal to be careful and strictly follow the above observations of the Hon'ble Supreme Court of India while deciding the main petition so as to fix appropriate liability/percentage of the negligence of each tort-feasors so as to enable the concerned litigant to recover the amount, if any, they have to pay in access of their liability. However, it goes without saying that for fixation of such liability, there must be proper, cogent and sufficient evidence before tribunal, in absence of evidence by concerned litigant, tribunal may have to rely upon minimum available evidence in form of FIR, panchnama and deposition of the eyewitnesses, if any, available. Thereby, it is made clear that if at all any litigant wants a decision of the tribunal regarding inter se liability of different tort-feasors such litigant should

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C/SCA/11202/2017 JUDGMENT

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also came forward to produced appropriate evidence.

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In view of above facts and circumstances, though petitions are dismissed confirming the impugned order, it is observed that tribunal shall strictly follow with the observations of the Hon'ble Supreme Court of India so also in this order.

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It is also made clear that tribunal has to fix inter se liability of all the tort-feasors based upon evidence that may be adduced before it during the trial, without being influence of the observations and discussion in the order as well as impugned order.

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Special Civil Applications are dismissed. Notice is discharged.

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(S.G. SHAH, J)

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VARSHA DESAI

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Page 7 of 7

New India Assurance Company Limited v. Eagal Trade Link Pvt. Ltd.

Case brief

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New India Assurance Company Limited v. Eagal Trade Link Pvt. Ltd.

Case brief

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