Dismissed

The Divisional Manager v. Gopinath

Madras HC16 Apr 2021CMA/2984/2017

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by an insurer challenging a Tribunal order directing it to pay compensation and recover 50% from the uninsured rider. The Court held that in composite negligence by joint tortfeasors, the insurer can pay the claimant and recover the proportionate share from the other tortfeasor in execution proceedings citing settled Supreme Court law.

What did the court decide?

Appeal dismissed with no costs.

The Divisional Manager Vs Gopinath — Motor Accident Claims | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 16.04.2021

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CORAM :

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THE HONOURABLE DR. JUSTICE KRISHNAN RAMASAMY C.M.A.No.2984 of 2017

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The Divisional Manager, The United India Insurance Co Ltd., No.46, Katpadi Salai, Vellore through

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United India Insurance Co Ltd., Motor Third Party Service Hub, AR Plaza, 35-37, 45 ft Road Extn Balaji Nagar, Saram, Puducherry – 605 011

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Puducherry – 605 011 ...Appellant / 3^rd Respondent Vs 1.Gopinath ...1^st Respondent / Petitioner 2.C.N.Annadurai ...2^nd Respondent / 1^st Respondent 3.Vengatesan ...3^rd Respondent / 2^nd Respondent 4.Gowtham ...4^th Respondent / 4^th Respondent 5.Soundarrajan ...5^th Respondent / 5^th Respondent

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PRAYER : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 22.03.2017 made in M.A.C.T.No.385 of 2013 on the file of the Motor Accidents Claims Tribunal, The Special Sub Court, Tiruvannamalai.

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The Tribunal, by Judgment dated 22.03.2017 in M.A.C.T.No.385 of 2013 directed the Insurance Company to pay the entire compensation of Rs.12,06,800/-(Rupees twelve six thousand eight hundred only) on behalf of respondents 1 and 2 with liberty to

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https://hcservices.ecourts.gov.in/hcservices/

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recover 50% of the compensation from the respondents 4 and 5 by way of filing execution petition on the basis of the decree. Challenging the question of 'pay and recover' proceedings awarded by the Tribunal, the Insurance Company has filed the present appeal.

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The appellant is the insurer of TATA 407 vehicle bearing Registration No.TN-25-6316 and the other vehicle involved in the accident is TN-23-P-8742, which was not insured.

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The Tribunal, after considering both oral and documentary evidence, has come to the conclusion that the occurrence took place due to the composite negligence of both the driver of TATA 407 vehicle and the rider of the motorcycle bearing Registration No.TN-23-P-8742. Accordingly, contributory negligence was fixed at 50% each.

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Now the contention of the appellant Insurance Company is that there is no dispute with regard to the fixation of the contributory negligence. The dispute is only with regard to the ordering of 'pay and recover'. When the motorcycle was not insured, the Tribunal ought not to have awarded pay and recover, directing the Insurance Company to pay and then recover from the owner of the two wheeler. When the vehicle was not insured, the question of 'pay and recover' would not arise.

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Per contra, learned counsel appearing for the claimants would submit that in the present case, there is no dispute with regard to the contributory negligence awarded by the Tribunal. The Tribunal has come to the conclusion that both the drivers of the vehicle are tort feasors and therefore, 'pay and recover' was ordered. When there was a tort feasor, compensation can be recovered from any one of the persons and thereafter, the other person can take action for recovery against the tort feasor. This position was settled by the Hon'ble Supreme Court in the case of Khenyei vs New India Assurance Company Ltd reported in 2015(1) TN MAC 801(SC). Therefore, there is no error on the part of the Tribunal in awarding pay and recover. Therefore, learned counsel prays for the dismissal of the appeal.

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Heard both sides and perused the materials available on record.

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There is no issue with regard to the finding about joint tortfeasors. The only issue is with regard to the ordering of 'pay and recover'. When the rider of the two wheeler does not have licence and 50% of contributory negligence fixed against the rider of the two wheeler whether the pay and recover can be ordered. The finding of the Tribunal was that the accident took place due to the composite negligence of both the drivers of the

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https://hcservices.ecourts.gov.in/hcservices/

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vehicles. Both the drivers are joint tort feasors. At this juncture, it would be appropriate to extract the relevant portion of the judgment in the case of Khenyei vs New India Assurance Company Ltd reported in 2015(1) TN MAC 801(SC).

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This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subjectmatter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law. What emerges from the aforesaid discussion is as follows :

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(i) 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

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https://hcservices.ecourts.gov.in/hcservices/

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joint tort feasors is joint and several.

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(ii) In the case of 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.

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(iii) In case all the joint tort feasors 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 tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of 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 main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.

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A perusal of the above judgment would make the position clear that in case of joint tort-feasors, if any compensation is awarded by the Tribunal, the same can be recovered from any one of the joint tort feasors and thereafter, the same can be

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https://hcservices.ecourts.gov.in/hcservices/

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recovered from the other person. In the present case the Tribunal held that the driver of both the vehicles are jointly attributed to the accident. Therefore, they are joint tort feasors. Thus, I do not find any illegality in the judgment of the Court below in ordering the 'pay and recover'. The issue is no more res integra. In view of the above settled law, there is no issue for adjudication in the present appeal and accordingly, I do not find any infirmity in the judgment passed by the Tribunal with regard to the direction issued by it for ‘pay and recover’ against the appellant Insurance Company.

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Therefore, the appeal fails and the same is dismissed. No costs.

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Sd/-

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Assistant Registrar(CS-IX)

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//True Copy//

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Sub Assistant Registrar

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The Motor Accidents Claims Tribunal, The Special Sub Court, Tiruvannamalai.

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+1cc to M/s.M.Malar, Advocate, S.R.No.23635

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+1cc to M/s.P.Sankaranarayanan, Advocate, S.R.No.23310

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CMA NO.2984 of 2017

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SRA(CO) RVM(08/10/2021)

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https://hcservices.ecourts.gov.in/hcservices/

The Divisional Manager v. Gopinath

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Gopinath

Case brief

What is this about?

What did the court decide?

What the court decided

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