Dismissed

M/S. SBI General Insurance Co. Ltd., Kolkata v. Sumitra Barik

Orissa HC18 Dec 2023WP(C)/20929/2023

Case brief

AI extract

What is this about?

The High Court, following settled law on composite negligence and the claimant's right to choose against whom to proceed, dismissed the writ petition challenging the rejection of an application to implead a third-party dumper driver. However, the Court remanded the matter to the lower tribunal to ensure swift disposal within three months.

What did the court decide?

The lower tribunal was directed to expedite the trial under MAC Case No.45 of 2016 and conclude it within three months from the date of receiving the order.

M/S. SBI General Insurance Co. Ltd., Kolkata Vs… — Execution and Attachment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No.20929 of 2023

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M/s. SBI General Insurance
Company Ltd., Kolkata ....... Petitioner
-Versus-
Sumitra Barik & Ors. ....... Opposite Parties
For Petitioner : Mr. G.P. Dutta,
Advocate
For Opposite Parties : Mr. S. Mishra,
Advocate
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA

Date of Hearing and Judgment: 18.12.2023

S.K. MISHRA, J.
1. Though the matter has been listed under the heading “For

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Orders” for removal of defects as pointed by the Office, since Mr. Mishra, learned Counsel has appeared suo motu representing the Opposite Party Nos.1 to 5, on consent of the learned Counsel for the parties, matter is taken up for hearing and final disposal at this stage.

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2. The present Writ Petition has been preferred challenging the

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order dated 11.04.2023 passed in MAC Case No.45 of 2016, vide

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which the petition dated 31.03.2023 filed by the Petitioner-Insurance

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Company (O.P.No.2 before the court below) to implead the owner as well as driver of the dumper bearing registration No.OR-14-P-7354, which was also involved in the accident, was rejected.

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3. Heard Mr. Dutta, learned Counsel for the Petitioner so also Mr.

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Mishra, learned Counsel for the Opposite Parties (Claimants before the court below).

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4. Mr. Dutta, learned Counsel for the Petitioner submits, in the accident, two vehicles were involved. The I.O., during investigation, found both the drivers of the vehicles to be rash and negligent in driving. Accordingly, charge sheet has been submitted against them, which has been exhibited before the court below as Exhibit 2.

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5. Mr. Dutta further submits, when both the drivers are responsible

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for the accident, the claim for compensation against the present Petitioner-Insurance Company, which is the Insurer of one of the said offending vehicles is illegal and unwarranted.

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6. Mr. Dutta further submits, the petition dated 31.03.2023 was rightly filed by the Petitioner-Company before the court below for fair adjudication of the dispute and disposal of the claim application in an effective manner. The presence of the owner as well as the driver of the

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Page 2 of 9

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dumper bearing registration no. OR-14-P-7354 is required and there cannot be effective adjudication of the said claim case, unless they are impleaded as parties to the said proceeding.

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7. Mr. Dutta submits, the court below was not justified to reject the said petition filed by his client on the ground that the claimants are the masters of their case and they have to decide and choose against whom they want to proceed and the Petitioner-Insurance Company (O.P.No.2

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before the court below) has no locus standi to file such an application

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approaching the Tribunal to direct the claimants to implead someone as party to the claim application.

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8. Mr. Dutta submits that though learned Counsel for the present Petitioner-Company filed the said application relying on the judgment of Madras High Court reported in 2020 (1) T.N. M.A.C. ( Oriental

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Insurance Company Ltd. v. Thirugnanasambandam.), the court below erroneously held that issue involved in the said case is not identical to the issue before the court below.

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9. In response to the said submission made by Mr. Dutta, Mr. Mishra, learned Counsel for the Opposite Parties submits, the Opposite

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Parties cannot compel the claimants to implead someone as party to the claim case and the discretion only lies with the Court to add or strike

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down someone as party to the claim application. The present Petitioner-Company (O.P. No.2 before the court below) has no locus standi to file such an application to implead the driver and owner of the dumper bearing the Registration No. OR-14P-7354.

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10. Mr. Mishra further submits, there being no infirmity in the impugned order passed by the court below dated 11.04.2023, which is in terms of the settled position of law, the present Writ Petition

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deserves to be dismissed in limine.

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11. He further submits, the sole intention of the Petitioner-Insurance

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Company is to drag the adjudication of the claim application on merit, which is pending since 2016.

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12. On perusal of the impugned order dated 11.04.2023, as at annexure-1, it is found that while rejecting the petition dated 31.03.2023 filed by the Petitioner-Insurance Company (O.P. No.2

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before the court below), the court below has observed as follows:

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“ It is settled position of law that in a claim proceeding, the claimants are the masters of their case and they are to decide and choose against whom they want to proceed. The O.Ps. cannot compel the claimants to implead someone as party to the claim case and the discretion only lies with the court to add or strike down someone as party to the claim application. The defendant has no locus standi

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Page 4 of 9

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to file application to implead someone as party to the claim application instituted at the instance of the claimants . No doubt in the accident in question two vehicles were involved and the I.O. has submitted charge sheet against the drivers of both the vehicles. But this is not a ground to compel the claimants to implead the driver and owner of the dumper bearing Registration Number-OR-14P-7354. If the Tribunal, on analysis of the evidence on record, hold that the drivers of both the vehicles were rash and negligent for causing the accident resulting death of the deceased, it is the claimants, who will suffer for not impleading the owner and driver of one of the vehicles involved in the accident and the O.P. No.2 will not be prejudiced in any manner . The O.P. No.2 can adduce evidence to substantiate its plea that the accident took place due to rash and negligent driving by the driver of dumper bearing Registration Number-OR-14P-7354.”

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Xxxxxxxxx “So, as discussed in the preceding paragraph, the O.P. No.2 has no locus standi to file the application approaching this Tribunal to direct the claimants to implead someone as party to the claim application filed by them. It is the only claimants to decide who is to be impleaded and not impleaded as party in the claim application. Moreover, the claim application is of the year 2016 and after closure of the evidence from the side of the claimants, the claim application was dragging for evidence from the side of O.P. No.2 since 17.03.2023. The O.P. No.2 instead of adducing any evidence to substantiate its plea has filed the present application to implead the driver and owner of the dumper bearing Registration Number-OR-14P7354 which is not legally sustainable.”

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(Emphasis Supplied)

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Page 5 of 9

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13. It is pertinent to mention here that the apex court in Khenyei v.

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New India Assurance Co. Ltd. & Ors . reported in 2015 (2) T.A.C. 677

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(S.C.), while dealing with a similar issue, vide paragraph no.18, held

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as follows:

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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 subject-matter 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 tortfeasor 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.

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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

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one of the joint tort-feasors and to recover the entire compensation as liability of 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 in independent proceedings after passing of the decree or award.

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(Emphasis Supplied)

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14. In view of the facts so also the observations made by the court

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below, as extracted above, so also settled position of law, this Court is of the view that there is no infirmity or illegality in the order dated 11.04.2023 passed in MAC Case No.45 of 2016.

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15. Hence, the Writ Petition stands dismissed.

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16. At this stage, Mr. Mishra submits, though the matter is pending since 2016 before the court below, despite there being no interim order passed by this court staying further proceeding in MAC Case No. 45 of 2016, the court below, on being intimated by the Petitioner InsuranceCompany as to pendency of the present Writ Petition, is not proceeding further since 17.03.2023. Rather, at the instance of the present Petitioner, the Court below is adjourning the matter from time to time and the matter now stands posted to 05.01.2024 for evidence from the side of the Opposite Parties. Accordingly, Mr. Mishra prays for directing the court below to expedite the hearing of MAC Case No.45 of 2016 and conclude it within a specified period.

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17. In view of such submission made by Mr. Mishra,, both the parties are directed to remain present on the adjourned date unfailingly with certified copy of this order and produce the same before the court below. On filing so, the court below shall do well to proceed further in accordance with law in MAC Case No. 45 of 2016 expeditiously and shall do well to conclude the same within a period of three months from the said date.

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18. Urgent certified copy of this order be granted on proper

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application as per rules.

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…….……………………

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S.K. MISHRA, J.

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Orissa High Court, Cuttack. Dated, 18^th December, 2023/ Banita

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Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: JR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 23-Dec-2023 11:56:58

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M/S. SBI General Insurance Co. Ltd., Kolkata v. Sumitra Barik

Case brief

What is this about?

What did the court decide?

M/S. SBI General Insurance Co. Ltd., Kolkata v. Sumitra Barik

Case brief

What is this about?

What did the court decide?

What the court decided

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