Jamil Husain Vs Kamel Singh @ Karnal Singh

Mr. Mahesh Chandra Sharma, J. - All these appeals have been filed against the judgment and award dated 28.9.2007 passed by the Motor Accident Claims Tribunal, Sikar and the issue involved in all the aforementioned misc. appeals is common, hence same are being decided by this common judgment.

2. The brief facts as narrated in CMA No. 264/2008 are that on 25.11.2003, Shri Yusuf, his sister Rukhsana, father Husain Bakhs, mother Smt. Raisan and brother Saddam came at Goriya Bus Stand for purchasing household goods. When they were standing on Kachcha side of the road, a truck bearing No. RJ-23G-0141 being driven rashly, negligently by its driver respondent No. 5 came from Sikar side. At the same time, another truck No. HR-37A-2077 also being driven in a rash and negligent manner by its driver respondent No. 1 came from Jaipur side. Respondent No. 1 overtook a Jeep and in this process hit the rear side of truck No. RJ-23-G-0141 due to which respondent No. 5 lost control over his truck and it came in the Kachcha side of the road where these persons were standing. They were crushed under this truck and Yusuf, Kum, Rukhsana, Husain Bakhs and Smt. Raisan died.

3. Notices were issued to the opposite parties. Reply to the claim petitions were filed and on the basis of the pleadings of the parties, the learned Tribunal framed the issues. After hearing all the parties, the learned Tribunal passed the impugned judgment and award, which is reproduced hereunder:

izkFkhZx.k us fnukad 25-11-2003 dks lka; 4 cts djhcu ,u0,p0 11 xkSfj;ka cl LVS.M ij vizkFkhZ la0 1 ,oa vizkFkhZ la0 5 }kjk okgu V~d la0 ,p0vkj0 37, 2077 o V~d la[;k vkj0ts0 23th 0141 dk pkyu vizkFkhZ la0 2 Jherh ''kkjnknsoh ,oa vizkFkhZ la[;k 6 vjfoUn flag okgu iathd`r Lokeh ds ykHkkFkZ mis{kk ,oa mrkoysiu ls pykus ds dkj.k gqbZ nq?kZVuk ds ifj.kkeLo:i ;wlqQ] Jherh jbZ''ku] gqlSucDl ,oa :dlkuk ds xaHkhj pksVsa vkbZ ,oa mudh e`R;q gks tkus dk rF; lkfcr fd;k gS rFkk ojoDr nq?kZVuk vizkFkhZ la0 2 ''kkjnk ''kekZ dk okgu V~d la0 ,p0vkj0 37, 2077 vizkFkhZ la0 4 vksfj;UVy ba'';ksjsUl dEiuh fy0 ds ;gka chfer gksus ds dkj.k rFkk fookn~;d la[;k 1 ds foospukuqlkj mDr nksuksa gh okguksa dh mis{kk ,oa ykijokgh 50&50 izfr''kr gksus ds dkj.k izkFkhZx.k viuh viuh Dyse jkf''k vizkFkhZ la[;k 1] 2 o 4 ls ,oa vizkFkhZ la0 5 o 6 ls vk/kh vk/kh izkIr djus ds vf/kdkjh gSA

(1) nq?kZVuk Dyse la0 244@2005 they gqlSu oxSjg cuke djusy flag oxSjg Dyse vkosnu ckn rufd;kr vizkFkhZ la0 1] 2 o 4] 5 o 6 ds fo:) rFkk izkFkhZx.k la0 1 o 5 ds i{k esa fu.khZr fd;k tkdj vkns''k fn;k tkrk gS fd%&

(2) nq?kZVuk Dyse la[;k 245@2005 they gqlSu oxSjg cuke djusy flag oxSjg Dyse vkosnu ckn rufd;kr vizkFkhZ la0 1] 2] 4] 5 o 6 ds fo:) ,oa izkFkhZx.k ds i{k esa fu.khZr fd;k tkdj vkns''k fn;k tkrk gS fd%&

(3) nq?kZVuk Dyse la[;k 265@2005 tkehy gqlSu oxSjg cuke djusy flag oxSjg Dyse vkosnu ckn rufd;kr vizkFkhZ la0 1] 2] 4] 5 o 6 ds fo:) ,oa izkFkhZx.k ds i{k esa fu.khZr fd;k tkdj vkns''k fn;k tkrk gS fd%&

(4) nq?kZVuk Dyse la0 264@2005 they gqlSu oxSjg cuke djusy flag oxSjg Dyse vkosnu ckn rufd;kr vizkFkhZ la0 1] 2] 4] 5 o 6 ds fo:) ,oa izkFkhZx.k la0 1 o 5 ds i{k esa fu.khZr fd;k tkdj vkns''k fn;k tkrk gS fd%&

4. Learned Counsel for the claimants appellants has contended that Tribunal has manifestly erred in deciding the case as if it was a case of contributory negligence and as such in apportioning the liability of payment of compensation to the extent of 50-50 percent between respondents No. 1, 2 and 4 and respondents No. 5 and 6 (in CMA No. 264/2008). So far as the appellants are concerned, it was a case of composite negligent and it is a settled law that in the matters of composite negligence the liability of making payment of compensation amongst the joint tort feasors should not be apportioned and they should be held liable to make payment of compensation jointly and severally. In these circumstances, the finding of apportionment of liability of making payment of compensation deserves to be quashed and set aside and the impugned award deserves to be suitably modified to this extent. He has further contended that in the case of composite negligence, claimants are entitled to recover the entire compensation from joint tort feasors jointly or severally when all joint feasors have been impleaded as parties.

5. In support of the submission above, Counsel for the claimants appellants has placed reliance on a judgment delivered by the Hon''ble Supreme Court in the case of Khenyei v. New India Assurance Co. Ltd. & Ors., MACD 2015 (SC) 97, wherein it has been held as under :-

"This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy condition by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and tie 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 ⅔rd and ⅓rd of respective drivers. Thus, the vehicle-trailer-truck which was not insured with the insurer, was negligent to the extent of ⅔rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailer-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:

(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 joint tort feasors is joint and several.

(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.

(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.

(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.

19. Resultantly, the appeals are allowed. The judgment and order passed by the High Court is hereby set aside. Parties to bear the costs as incurred."

6. Counsel has further contended that the impugned award passed by the learned Tribunal be quashed and set aside and the matter be remanded to the learned Tribunal with the direction to decided the matter afresh in the light of objections which he has raised by way of aforesaid appeals and in the light of judgment (supra).

7. On the other hand, the learned Counsel for the respondent/s though opposed the same but requested that the learned Tribunal may be directed to hear him/them at the time of deciding the matter afresh and he may be permitted to raise all the objections.

8. Mr. K.N. Tiwari appearing behalf of driver and owner does not dispute the verdict of the judgment cited by learned Counsel for the appellants.

I have heard learned Counsel appearing for the respective parties and carefully scanned the entire material made available to me including the impugned Judgment and Award passed by the learned Claims Tribunal.

9. From a bare perusal of the facts of the case, material and evidence available on record, in my considered view, the learned Tribunal while passing the impugned award has not gone through the complete facts of the case including the evidence and passed the impugned award surreptitiously. Thus, the impugned award passed by the learned Tribunal needs interference of this Court.

10. In the result, the appeals are partly allowed and the impugned judgment and award passed by learned Tribunal is quashed and set aside with the direction to the learned Tribunal to decide the matter afresh expeditiously in the light of grounds raised by the learned Counsel for the appellants in the appeals and in the light of the judgment given in the case of Khenyei v. New India Assuraml Co. Ltd. & Ors. (supra), and other judgments to be cited by learned Counsel for the parties, if any, after issuing notice to all the concerned parties and giving opportunity of hearing of them.

Both the parties request for specific date for appearing before the Trial Corn, hence they are directed to appear before the learned Tribunal on 5.12.2016.

Record, if any, be sent back to the Court concerned, forthwith.