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2019 Supreme(Raj) 2955
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Ashok Kumar Gaur, J.
Ramkishan – Appellant
Versus
Monu Khatik and Ors. – Respondents
S.B. Civil Writ Petition No. 15558 of 2019
Decided On : 15-10-2019
Advocate Appeared:
For the Appellant : Ram Singh Rathore, Adv.
For the Respondent: Ritesh Jain, Adv.
in view of the settled principle of law that where a person is injured without any negligence on his part but has a combined effect of the negligence of two other persons, it is a case of composite negligence
Headnote:
Civil Procedure Code, 1908 - Section 151 - Order 1 Rule 10 – Accident claim – Serious injuries - Implead of insurance company - If there were two colliding vehicles, the Insurance Company was justified in moving application for impleadment of the driver, owner and insurer of the other vehicle involved in the accident. Counsel submitted that claim of the petitioner can be better adjudicated when proper parties are before the Tribunal.
Facts of the case:
The petitioner-claimant submitted that in the alleged accident which took place on 1st February, 2017, serious injuries were sustained by the petitioner and the petitioner filed a claim petition against the driver, owner and insurer of the other vehicle. Counsel for the petitioner submitted that the application filed by the Insurance Company under Order 1 Rule 10 CPC has wrongly been allowed by the Tribunal.
Finding of the Court:
Reiterated the same principle and choice has been given to the claimant to sue any of the negligent person and he is not required to find out as to whether there is any duty of contribution or indemnity as between those persons. The Coordinate Bench has also observed that the claimant has right to sue any of the negligent person because he can recover full amount of damages from either of the parties. The persons, who are sued are not to insist on having the others joined as defendants and right of the claimant cannot be defeated on the ground that other persons can be impleaded as party.
Result: Writ petition allowed.
ORDER :
Ashok Kumar Gaur, J.
1. The instant writ petition has been filed by the petitioner-claimant challenging the order dt. 9th August, 2019, whereby the application filed under Order 1 Rule 10 read with Section 151 CPC filed by the Insurance Company has been allowed and it has been directed that driver, owner and insurer of the other vehicle i.e. motor cycle, be impleaded as parties in the claim petition.
2. Counsel for the petitioner-claimant submitted that in the alleged accident which took place on 1st February, 2017, serious injuries were sustained by the petitioner and the petitioner filed a claim petition against the driver, owner and insurer of the other vehicle bearing No. RJ-08-UA-2945. Counsel for the petitioner submitted that the application filed by the Insurance Company under Order 1 Rule 10 CPC has wrongly been allowed by the Tribunal.
3. Counsel submitted that impleadment of the parties is the sole discretion and choice of the claimant and if there are two colliding vehicles, claimant reserves his right to make the driver, owner and insurer of the vehicle against whom he wants claim and as such he cannot be insisted that all the joint tortfeasors in case of composite negligence, should be made party.
4. Counsel for the petitioner has placed reliance on the judgment passed by the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors. reported in 2015 (1) ACTC (SC) 563. Para 9, 10 & 11 of the judgment passed by the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors. (supra) is reproduced hereunder:-
"In National Insurance Co. Ltd. v. P.A. Vergis & Ors. [1991 (1) ACC 226], it has been observed that the case of composite negligence is one when accident occurs and resulting injuries and damages flow without any negligence on the part of the claimant but as a result of the negligence on the part of two or more persons. In such a case, the Tribunal should pass a composite decree against owners of both vehicles. In United India Fire & Genl. Ins. Co. Ltd. v. Varghese & Ors. [1989 2 ACC 483 : 1989 ACJ 472], it has been observed that in a case of composite negligence, the injured has option to proceed against all or any of the joint tortfeasors. Therefore, the insurer cannot take a defence that action is not sustainable as the other joint tortfeasors have not been made parties. Similar is the view taken in United India Fire & General Insurance Co. Ltd. v. U.E. Prasad & Ors. [AIR 1985 Kar. 160]. In Andhra Marine Exports (P) Ltd. & Anr. v. P. Radhakrishnan & Ors. [AIR 1984 Mad. 358], it has been held that every wrong doer is liable for whole damages in the case of composite negligence if it is otherwise made out.
Similar is the view taken in Smt. Kundan Bala Vora & Anr. v. State of U.P. [AIR 1983 All. 409], where a collision between bus and car took place. Negligence of both the drivers was found. It was held that they would be jointly and severally liable to pay the whole damages. In Narain Devi & Ors. v. Swaran Singh & Ors. [1989 2 ACC 116 (Del.) : 1989 ACJ 1118] there was a case of composite negligence by drivers of two trucks involved in an accident which hit the tempo from two sides. The proportion in which the two vehicles misconducted or offended was not decided. It was held by the High Court that the Tribunal was right in holding the liability of tortfeasors as joint and several.
10. A Full Bench of the High Court of Karnataka at Bangalore in Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun alias Aravind and etc. etc. [AIR 2004 Kar. 149] has affirmed the decision of another Full Bench of the same High Court in Ganesh v. Syed Munned Ahamed & Ors. [ILR (1999) Kar. 403]. A Division Bench referred the decision in Ganesh's case (supra) on following two questions to the larger Bench:
"1. If the proceedings are finally determined with an award made by the Tribunal and disposed of in some cases by the appeal against the same by the High Court, does the Tribunal not bec
