SAIYED RAKNUDDIN JANUDDIN PIRSABMIYA Vs. RAJESHKUMAR BABARJI DABHI

JUDGEMENT

(1.) Heard learned advocate Mr.Amit N.Patel for the appellant, learned advocate Mr.K.K.Nair for the respondent No.3, learned advocate Mr.Swapnil H.Chauhan for respondent No.5 and learned advocate Mr.Maulik J.Shelat for respondent No.6.

(2.) The appellant herein is original claimant whereas respondents are original opponents being drivers, owners and insurers of both the vehicles, which were involved in the accident. The appellant claimant has been awarded the amount of Rs.84,000.00 with 7.5 % interest from the date of the claim petition till realisation and proportionate cost by judgment and award dtd. 20/4/2010 by Motor Accident Claims Tribunal (Auxiliary) of Ahmedabad City in M.A.C.P. No.587 of 2003. Though the Tribunal has awarded compensation in favour of the claimant, the claimant has to prefer this First Appeal because of one another order dtd. 16/6/2010 in a Review Application filed in such disposed of claim petition at Exh.73. By such application, the Tribunal has exonerated the liability of opponent No.3 i.e. Oriental Insurance Co.Ltd. However, while doing so, instead of fixing the liability of all the tort-feasors jointly and severally, the Tribunal has categorically ordered that opponents No.1 and 2 on one hand and opponents No.4 to 6 on other hand have to pay the compensation to the claimant in the ratio of 50% each though total amount of compensation remains unaltered i.e. Rs.84,000.00. While allowing such review application at Exh.73, the Tribunal has recorded that at the time of argument of the main petition, it was brought to the notice of the Tribunal that vehicle No.GJ-18T-3261 was not insured with opponent No.3 Oriental Insurance Co.Ltd. Hence, the Tribunal should not have passed the award against opponent No.3, but inadvertently in final award, the liability of opponent No.3 was not exonerated. To that extent, Tribunal has committed error in passing award against all the opponents, including opponent No.3. Therefore, the review application was allowed as aforesaid. If we peruse the operative portion of the final judgment and award, it becomes clear that therein also, the Tribunal has instead of fixing the liability of all the tort-feasors jointly and severally, bifurcated the liability between opponents No.1 and 3 and 4 to 6 equally i.e. 50% each.

(3.) To that extent, if we peruse the nature of accident as recorded by the Tribunal, it becomes clear that on 27/2/2003, when claimant was travelling as a pillion rider on one motorcycle No.GJ-1CM-7868 driven by opponent No.4, owned by opponent No.5 and insured by opponent No.6, and when it was going towards Geeta Mandir from Jamalpur Circle, near AMTS Workshop, a loading rickshaw No.GJ-18T-3261 came from opposite direction and collided with the motorcycle. Thereby, claimant has suffered serious injuries in such vehicular accident. Therefore, one thing is clear and certain that claimant is not the tort-feasor and therefore, this is a case of composite negligence between two tort-feasors wherein victim has not contributed anything. In view of such factual and undisputed fact, as a third party, the claimant is entitled to recover full set of amount from either of the tort-feasor and all the tort-feasors are equally liable to pay full set of compensation to such victim. In view of such fact, if claimant succeeds in recovering full set of compensation from any one of the tort- feasor, then, such tort-feasor may in turn claim and recover the amount of compensation, which he was bound to pay for the other joint tort-feasor, from other tort-feasors but all the tort-feasors are liable to compensate the claimant jointly and severally. To that extent, the Tribunal has committed an error by not making award against all the opponents jointly and severally and therefore, the same needs to be modified to that extent. This is now settled legal position, which does not require support of any decision or other discussion and therefore, I hold that all the respondents except respondent No.3 are jointly and severally liable to pay compensation to the claimant. So far as respondent No.3 is concerned, when based upon the evidence adduced before the Court the Tribunal has came to the conclusion that there is no proper evidence to confirm that vehicle in question i.e. rickshaw No.GJ-18T- 3261 was insured with opponent No.3 Oriental Insurance Co.Ltd.; at this stage, in absence of any evidence and pleading to fix the liability of respondent No.3 also, there is no reason to interfere with any such decision and order by the Tribunal that opponent No.3 is exonerated from indemnifying the owner for want of proper insurance policy in his favour.