ORIENTAL INSURANCE COMPANY LIMITED Vs. IDA SIC

JUDGEMENT

(1.) The short issue in this case is in regard to recovery from the insurer based on an award holding composite negligence among the joint tort feasors. The Tribunal, in the award found that liability of the insurer is half and other half is on the owner of the other vehicle involved in the accident. The insurer satisfied half. However, the claimant sought recovery from the insurer as against other half as well. In the award, the insurer was only directed to deposit half of the amount. Though in the preceding direction, the Tribunal observed that the insurer as well as the other vehicle's owner are jointly and severally liable. The award read in toto, it can be seen that the Tribunal following the earlier judgment related to same accident found that this is a matter of composite negligence and liability will have to be apportioned between the insurer and the owner of the other vehicle. In that context, the insurer would contend that the Tribunal could not have ordered recovery of other half as well from the insurer.

(2.) This argument appears to be correct. The insurer has no other liability in regard to the other half. However, the learned counsel for the claimant pointing out the dictum of the Apex Court Khenyei v. New India Assurance Co. Ltd and others in 2015 (3), KHC 70 held that in case of composite negligence, entire compensation can be recovered from one of the joint tort feasors and it open for such joint tort feasors to satisfy the award and recover the other portion of compensation from the other joint tort feasors. It is appropriate to refer the relevant paragraph of the Apex Court judgment in Khenyei's case (Supra) as follows:-

(3.) The Apex Court judgment is clear in regard to the recovery of compensation from one of the joint tort feasors. Therefore, the recovery is possible. If the insurer satisfied the award, the insurer can recover the portion of the compensation payable by other joint tort feasors from him through the recovery proceedings. Admittedly, the insurer paid only 50 percent of Ext.P3 order.