The New India Assurance Co Ltd. v. Chitrarekha Baburao Magar And ORS.

{1} 218-FA-1272-05-J

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO. 1272 OF 2005 Having its Head and registered office At New India Assurance Building, 87, M.G. Marg, Fort, Mumbai, Bench Office at Latur, Divisional Office at Aurangabad.

(Orig. Respondent No.3)

1. Keshavrao s/o Bhimrao Tike, Age 59 yrs. Occ. Nil

2. Sow. Anusayabai w/o. Keshavrao Tike.

Age 54 yrs. Occ. Household, Both R/o. Haldurga Tq. Ausa Respondent (Ori.Respdt. 1 and 2)

3. Sanjay s/o Nagnathrao, Age major Occ. Driver, R/o Fulari Galli, Udgir, Respondents Dist. Latur.

(Ori.Resp.No.1)

4. Devendra s/o Baburao Patil Age Major, Occ. Business, R/o Daithana, Tq. Udgir, Dist. Latur.

...

Mr. H.R.Pathak, Advocate for Respondents No. 1 and 2 - Absent. Mr. V.D.Godbharle, Advocate for Respondents No.3,4 -Absent

{2} 218-FA-1272-05-J WITH FIRST APPEAL NO. 1 OF 2005 Through its branch Manger, Chandra Nagar Latur, Tq. and Dist.

Latur and its Divisional Office at Latur at Aurangabad.

(Org.Opponent)

1. Smt. Chitrarekha widow of Baburao Magar, age 45 years, Occ. Household

2. Murlidhar s/o Baburao Magar, Age 30 years Occ. Agri.

3. Miss. Meera d/o Baburao Magar, Age 18 years, Occ. Household, All R/o Bhada Tq. Ausa Respondents Dist. Latur.

Claimants

4. Devendra s/o Baburao Patil, Age Major, Occ. Truck owner, R/o. Daithana, Tq. Udgir, Dist. Latur.

5. Sanjay s/o Nagnath Sawale age major Occ. Driver, R/o Phular Galli, Bodhan Road Respondents Udgir, Tq. Udgir, Dist. Latur.

6. Sanjay s/o Baburao Tike, age major Occ. Jeep owner, R/o Naldurg, Tq. Ausa, Dist. Latur.

...

Mr. B.N.Patil, Advocate for Respondents No.1 to 3 -Absent Mr. V.D.Godbharle, Advocate for Respondents No. 4 & 5- Absent. Mr. M.L.Dharashiv, Advocate for Respondent No.6 -Absent

{3} 218-FA-1272-05-J WITH FIRST APPEAL NO. 2 OF 2005 Through its branch Manger, Chandra Nagar Latur, Tq. and Dist.

Latur and its Divisional Office at Latur at Aurangabad.

(Org.Opponent)

1. Smt. Chitrarekha widow of Baburao Magar, age 45 years, Occ. Household

2. Miss Meera d/o Baburao Magar, Age 18 years, Occ. Household, All R/o Bhada Tq. Ausa Dist. Latur.

.. Claimants

3. Devendra s/o Baburao Patil Age Major, Occ. Truck owner, R/o Daithana, Tq. Udgir, Dist. Latur.

4. Sanjay s/o Nagnath Sawale age major Occ. Driver, R/o Phular Galli, Bodhan Road .. Respondents Udgir, Tq. Udgir, Dist. Latur.

5. Sanjay s/o Baburao Tike, age major Occ. Jeep owner, R/o Naldurg, Tq. Ausa, Dist. Latur.

...

Mr. B.N.Patil, Advocate for Respondents No.1 and 2 -Absent Mr. V.D.Godbharle, Advocate for Respondents No. 3 & 4- Absent. Mr. M.L.Dharashiv, Advocate for Respondent No.5 -Absent

{4} 218-FA-1272-05-J WITH FIRST APPEAL NO. 3 OF 2005 Through its branch Manger, Chandra Nagar Latur, Tq. and Dist.

Latur and its Divisional Office at Latur at Aurangabad.

(Org.Opponent)

1. Smt. Madhavi @ Rani widow of Sudhakar Magar, Age 20 years, Occ. Household

2. Smt. Chitrarekha widow of Baburao Magar, Age 45 years, Occ. Household, .. (Claimants)

3. Miss Meera d/o. Baburao Magar, Age 18 years, Occ. Household, All R/o Bhada, Tq. Ausa, Dist. Latur.

4. Devendra s/o. Baburao Patil, Age Major Occ. Truck Owner, R/o. Daithana, Tal. Udgir, Dist.Latur.

5. Sanjay s/o Nagnath Sawale, Age Major Occ. Driver, R/o. Fular Galli, Bodhan Road, Udgir, Tal.Udgir, Dist.Latur.

6. Sanjay s/o. Baburao Tike, Age Major, Occu. Jeep Owner, R/o. Naldurg, Tal.Ausa, Dist.Latur.

Mr. B.N.Patil, Advocate for Respondents No.1 to 3 -Absent Mr. S.H.Walke, Advocate for Respondent No.4 -Absent Mr. V.D.Godbharle, Advocate for Respondents No. 5 & 6- Absent.

{5} 218-FA-1272-05-J CORAM : A.M. DHAVALE, J.

DATE: 10st AUGUST, 2018 JUDGMENT :- 1.

These appeals are filed by Insurance Company. Heard learned Advocate Shri. Mohit Deshmukh for the appellantInsurance Company. 2.

The only challenge to the Judgment and Award dated 23.09.2004 passed by the Member, Motor Accident Claims Tribunal, Latur is on the ground that two vehicles were involved and the driver, owner and insurer of a Jeep were not made parties. The claim was made only against the owner, driver and insurer of the truck. There was contributory negligence, and therefore, the entire liability should not have been fastened on the Insurance Company of the truck. It is not disputed that all the claimants were occupants of the Jeep. In such a case, even if there was contributory negligence on the part of the driver of both the vehicles, still, it is a case of composite negligence. The issue is covered in KHENYEI Vs. New India Assurance Company Ltd. [2016 (2) Mh.L.J.514], wherein it is observed as follows :-

{6} 218-FA-1272-05-J 7.

Pollock in Law of Torts, 15th Edn. has discussed the concept of composite negligence. The relevant portion at page 361 is extracted below :

" Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons of whom the one is not responsible for the other. It has been supposed that A could avail himself, as against Z who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. It is true you were injured by my negligence, but it would not have happened if B had not been negligent also, therefore, you cannot sue me, or at all events not apart from B. Recent authority is decidedly against against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A to answer to Z: You were not injured by my negligence at all, but only and wholly by B's.

{7} 218-FA-1272-05-J B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B,. But if this last conclusion be arrived at, it is now quite clear that Z can sue both a and B. At page 362 Author has observed as :- "The strict analysis of the proximate or immediate cause of the event: the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled- to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnify as between those persons, though in any case he cannot recover in the whole more than his whole damage."

3.

Thus, it is clear that the legal heirs of deceased persons are free to select any of the owner and insurance company of any of the two vehicles. It is not necessary that they should join the driver, owner and insurer of both the vehicles. It is further clear that even if they have obtained decree against the driver and insurer of both the vehicles, they have discretion to execute it and only against the

{8} 218-FA-1272-05-J insurance company of any of the vehicles. If the claimants join the driver, owner and insurance company of both the vehicles, then court has to consider the apportionment of liability and if one insurance company is required to pay the entire amount, it can recover the proportionate amount from the other insurance company as per the Award. In such circumstances, there is no substance in the contention that the entire liability could not have been fastened on the insurer of the truck. No other point was canvassed before me.

4.

Therefore, there is no substance in the appeals and those are liable to be dismissed, and are accordingly dismissed with no order as to costs.

( A.M.DHAVALE, J ) mta