In composite negligence cases, a claimant can recover full damages from any joint tortfeasor without being compelled to join others, affirming the principle of joint and several liability.

JUDGMENT :

J. C. Doshi, J.

1. The instant petition under Article 227 of the Constitution of India prays following relief :

“(A) Your Lordships may be please to admit and allow the present Special Civil Application;

(B) Your Lordships may be please to quash and set aside the order dated 08.01.2024 passed by the Learned Tribunal in the Application for Joining Parties vide Exhibit 24 (Annexure— A (colly.)) filed in the MAC Petition No. 23 of 2022 at Valsad;

(C) Your Lordships may be please to issue a writ of certiorari and/or writ of mandamus and further be please to pass an appropriate direction allowing the Application dated 18.10.2023 for joining parties — Driver, Owner and the Insurance Company of the Activa bearing registration No. GJ-15-BL-8954 vide Exhibit 24 (Annexure — A (Colly)) filed by the Petitioner in MAC Petition No. 23 of 2022 at Valsad,

(D) Your Lordships during the pendency of the present Special Civil Application be please to pass an ad interim ex — parte stay on the further proceedings of MAC Petition No. 23 of 2022 pending before the Ld. Motor Accident Claims Tribunal (Main) at Valsad;”

2. The brief facts of the case are as under.

2.1 On 24.04.2022, the deceased Kusumben was traveling as the Pillion rider with her daughter Anusha John Jepadhas who was riding the Activa bearing registration No. GJ-15-BL-8954. The rider had tried to over take a Truck GJ-15-AT-8396 (hereinafter referred to as “the truck”) from the left side. The rider lost control on Activa. Activa was slipped. The rider and the pillion rider fell down on the road. The pillion rider came under the left rear tyre of the truck and had suffered fatal injuries.

3. In essence, this petition challenges the order passed below Exhibit-24 in M.A.C.P. No.23 of 2022 whereby the petitioner prays to join the driver, owner and insurer of Activa Moped No.GJ-15-BL-8954 on the ground that the deceased Kusumben Jepadas at the time of road accident was sitting pillion in this moped and as such the driver, owner and insurer of this vehicle are also necessary party in the claim petition filed by heirs of the deceased Kusumben.

4. Heard learned advocate Mr.Vibhuti Nanavati appearing for the Insurance Company. None remained present for the respondents.

5. The submissions of learned advocate Mr.Vibhuti Nanavati would be recorded as under :

5.1 That the learned Tribunal committed error in rejecting application at Exhbit-24, preferred by petitioner to join the driver, owner and insurer of the other vehicle involved in road accident.

5.2 That the road accident took place between two offending vehicles namely Activa Moped No.GJ-15-BL-8954 and Truck No.GJ-15-AT-8396. Deceased Kusumben was sitting pillion in the Activa moped, therefore, this is a road accident between two vehicles for the negligence of two tortfeasors. He would submit that the deceased Kusumben was pillion rider in Activa moped and as such she has no contribution in causing the road accident yet since two vehicles are involved in the road accident for proper apportionment of the liability of the tortfeasor, the driver, owner insurer of the other vehicle are necessary party.

5.3 He would further submit that the claimants have filed the claim petition only against the driver, owner and insurer of the truck leaving behind driver, owner and insurer of the Activa moped. Learned advocate Mr.Vibhuti Nanavati further submits that daughter of the deceased Kusumben was riding Activa moped involved in the road accident. The claimants have purposefully avoided to join the driver, owner and insurer of the Activa moped. He would further submit that it is always advisable to bring all tortfeasor before the learned Tribunal to decide the issue pertaining to contributory negligence and to decide the inter se negligence of the driver of both vehicles.

5.4 Learned advocate Mr.Nanavati submits that though bifurcation of the liability of both tortfeasors became an academic formality, presence of both the tortfeasors in the claim petition is n