NEW INDIA ASSURANCE CO LTD Vs. KESHO RAM

JUDGEMENT

(1.) The Insurance Company pleads for exclusion of liability on the ground that yet another joint tort feasor has not been impleaded and the Tribunal could not have directed the amount to be released without actually apportioning the liability between two tort feasors, who had by their composite negligence caused the accident by collision between two vehicles. The learned Counsel refers to the Division Bench ruling of this Court in Bhajan Lal Bishnoi v. Rajasthan State Road Transport Corporation, 1991 ACJ 651. The Division Bench had ruled that if only one joint tort feasor is before Court, the award amount has to be apportioned to the extent of negligence of that tort feasor, who is before the Court. The joint tort feasor, who is before the Court, would not be able to realize the rest of the amount from the other tort feasors.

(2.) The issue of liability to a third party and the choice of action by a third party against anyone of the tort feasors is too well laid a proposition of law that requires not to be re-examined at this length of time. Every Court in India has come by the same dispensation that the action by a third party cannot be defeated by the fact that the joint tort feasor is not impleaded as a party. The issue of a right of action by a third party against anyone of tort feasors is so well established a proposition that it has assumed the status of stare decisis. In State of Haryana v. Amandeep Singh,2001 2 RecCivR 1, a Division Bench of this Court has held that when the tort feasors are held guilty of composite negligence, the claimants can claim and recover the amount from anyone of them leaving that tort feasor to have his remedy of recovery from the other. In yet another decision in Oriental Insurance Co. Limited v. Smt. Parveen Juneja,2002 1 RecCivR 18, in a case of composite negligence, the Division Bench ruled that a claim could choose to sue any of tort feasors and it cannot be defeated by the fact that yet another tort feasor is not made as a party. A single Bench has referred to the decision in Oriental Insurance Co. Limited v. Monika Verma and Ors.,2008 3 RecCivR 693, that in a case of composite negligence, the claimant could recover the amount from anyone of the joint tort feasors without even impleading the other tort feasors as a party and in that situation the only remedy to the tort feasor is to recover the amount from the other tort feasors but the claimant be denied the full compensation.

(3.) If the other offending vehicle is also impleaded, it shall become obligatory for a Tribunal to ascertain the respective liability of the vehicles by apportionment. On the other hand, if the other joint tort feasor is not made as a party, it will be even a futile exercise to attempt to apportion liability, for any decision taken by a Tribunal in the absence of such a party will not bind the other tort feasor, who is not a party. The option in such a case would be either to direct the claimants to implead the joint tort feasor or make the award against one of the tort feasors leaving it open to the party made liable to take independent action against the other tort-feasor for recovery on an adjudication relating to apportionment of liability.