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2011 DIGILAW 406 (GUJ)

Union of India v. Rafikbhai Allarakhabhai

2011-05-06

M.R.SHAH

body2011
JUDGMENT : M.R. SHAH, J. 1. As common question of law and facts arise in this group of appeals, they are being disposed of by this common judgment and order. 2. In all these appeals respective appellants Union of India through General Manager, Western Railway, Bombay has challenged the impugned common judgment and order 30.9.2009 passed by the learned Motor Accident Claims Tribunal (Main), Surendranagar passed in C.M.A. Nos. 77 of 2001 to 80 of 2001 and C.M. A. Nos. 642 of 2003 to 652 of 2003, dismissing the said Civil Miscellaneous Applications. 3. The facts leading to the present appeals in nutshell are as under: 3.1. That accident took place on 3.5.1984 at about 8.50 a.m. between Metador No. GRJ. 9145 and Saurashtra Janta Express and both Metador and Saurashtra Janta Express collied at an unmanned railway crossing in which 15 persons died and 8 persons received injuries. That the original claimants preferred Claim Petitions before the Motor Accident Claims Tribunal, Surendranagar in which appellants viz. Western Railway was joined as opponent no.3 and the driver and owner of the Metador as well as United India Insurance Company were also joined as party to the said claim petitions. That the learned Tribunal declared the awards in respective claim petitions and ordered that the original opponents are jointly and severally liable to pay compensation to the claimants. That being aggrieved and dissatisfied with the judgment and award passed by the learned Motor Accident Claims Tribunal in respective claim petitions, the appellant herein -Western Railway preferred appeals before this Court. However, there was a delay in preferring the appeals, therefore, Civil Applications for condonation of delay were preferred. That in the meantime, the original claimants filed Execution Petition before the learned Tribunal and, therefore, the appellants prayed for stay of the execution petition before the District Court, which was granted by this Court on the condition that the applicant-Railway depositing decreetal amount awarded by the Tribunal. It appears that thereafter the Civil Application for condonation of delay came to be rejected by the Division Bench of this Court, however while rejecting the delay condonation application, the Division Bench observed and clarified that the rejection of the application for condonation of delay will not come in the way of the applicant-Railway administration in seeking indemnification from the Insurance Company and the driver and the owner of the metador. That thereafter the appellant herein-original applicant submitted the aforesaid Civil Miscellaneous Application under Section 110(E) (new Section 174) of the Motor Vehicles Act for the following relief: a. To direct the provisions of Section 110(E) of the Motor Vehicles Act, be put into effect for determining and apportioning inter se liability to the opponents and present applicant; b. To issue certificate to recover under Section 110(E) of the M.V. Act certifying that sum of Rs. 1,60,672/- or any other amount be justified with interest thereon at the rate of 18% per annum from the date of application till payment recoverable by the applicant from respondents- opponent Nos. 3 to 5 of such execution, as has been paid by the present applicant under the original award dated 30.1.1993. c. Any other relief as deemed fit as circumstances provided under the law." 3.2. It was contended on behalf of the appellant-original applicant that there were four opponents in the claim petitions, liability on the part of the Railway would be limited to 25% of the awarded amount and since Railway has deposited full amount awarded by the Tribunal remaining 75% be ordered to be shared by other three opponents and the same may be ordered to return to applicant-western railway. It appears that as such before filing aforesaid applications, appellant -original applicant preferred Regular Civil Suit No.73 of 1996 and other Civil Suits in the Court of learned Civil Judge (S.D.), Surendranagar wherein amount of compensation from the opponents was claimed by the present applicant, however said suit came to be dismissed for want of jurisdiction and thereafter aforesaid Civil Miscellaneous Applications were filed under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act. That the learned Tribunal by impugned common judgment and award has dismissed the said Civil Miscellaneous Applications by observing that the application submitted by the appellant-original claimant under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act for the prayers / reliefs sought in the aforesaid applications are not maintainable and consequently the learned Tribunal dismissed the aforesaid application. Being aggrieved and dissatisfied with the aforesaid impugned common judgment and order dated 30.9.2009 passed by the learned Motor Accident Claims Tribunal (Main), Surendranagar passed in C.M.A. Nos. 77 of 2001 to 80 of 2001 and C.M. A. Nos. Being aggrieved and dissatisfied with the aforesaid impugned common judgment and order dated 30.9.2009 passed by the learned Motor Accident Claims Tribunal (Main), Surendranagar passed in C.M.A. Nos. 77 of 2001 to 80 of 2001 and C.M. A. Nos. 642 of 2003 to 652 of 200, the original appellants Union of India through General Manager, Western Railway, Bombay has preferred the present First Appeals. 4. Shri Shevade, learned advocate for the appellant has vehemently submitted the learned Tribunal has materially erred in dismissing the Civil Miscellaneous Applications and not granting the relief as prayed for. It is further submitted that the learned Tribunal has materially erred in holding that for apportionment of the amount and inter se liability, Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act would not maintainable. It is submitted that as such earlier appellant did file the Civil Suits before the Civil Court claiming amount of compensation from the other opponents of the claim petitions, however the same came to be dismissed for want of jurisdiction and therefore, the only remedy available to the appellant would be to submit the application under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act. 4.1. Shri Sevade, learned advocate for the appellant has heavily relied upon the decision of the Bombay High Court in the case of The Oriental Fire and General Insurance Co. Ltd. v. Balkrishna Ramchandra Nayan and others reported in AIR 1982 Bombay 277 (para 15 and 16). 4.2. Shri Sevade, learned advocate for the appellant has further submitted that while passing the judgment and award passed by the learned Tribunal in claim petitions the inter se liability / negligence between the opponents in the claim petitions was not apportioned, the only remedy available to the appellant would be submitting the application under Section 174 of the Motor Vehicles Act. 5. Heard Shri Sevade, learned advocate for the appellant-original applicants at length. At the outset, it is required to be noted that in a group of claim petitions the learned Motor Accident Claims Tribunal has ordered that all the opponents to the claim petitions are jointly and severally liable to pay the compensation to the original claimants . 5. Heard Shri Sevade, learned advocate for the appellant-original applicants at length. At the outset, it is required to be noted that in a group of claim petitions the learned Motor Accident Claims Tribunal has ordered that all the opponents to the claim petitions are jointly and severally liable to pay the compensation to the original claimants . It is an admitted position that as such the Tribunal has not apportioned the liability amongst the original opponents inter se and as observed hereinabove, the tribunal had ordered that opponents are jointly and severally liable to pay the amount of compensation to the claimants. That thereafter, the appellant -original applicant pursuant to the order passed by the Division Bench of this Court had deposited the entire amount of compensation as awarded by the learned Tribunal and thereafter had preferred the respective Civil Miscellaneous Applications under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act requesting for determining and apportioning inter-se liability to the opponents and the present applicant and consequently to issue certificate to recover under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act for the amount which may be found due and payable from the other opponents i.e. 75% of the amount of compensation to be recovered from the other opponents. It is case of the appellant-original applicant that as there were four opponents in the claim petitions, liability on the part of the Railway would be limited to 25% of the awarded amount and since Railway has deposited full amount awarded by the Tribunal, remaining 75% be ordered to be shared by other three opponents and the same may be ordered to be returned to applicant-western railway, therefore, the prayer is made to issue certificate under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act. 6. For the aforesaid, relevant provision of Section 174 of the Motor Vehicles Act is required to be considered. Section 174 of the Motor Vehicles Act (which is para-materia of Section 110(E) of the Motor Vehicles Act, which reads as under: "Section 174: Recovery of money from insurer as arrear of land revenue. 6. For the aforesaid, relevant provision of Section 174 of the Motor Vehicles Act is required to be considered. Section 174 of the Motor Vehicles Act (which is para-materia of Section 110(E) of the Motor Vehicles Act, which reads as under: "Section 174: Recovery of money from insurer as arrear of land revenue. Where any amount is due from any person under an award, the claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the manner as an arrear of land revenue". 7. Considering Section 174 of the Motor Vehicles Act as rightly observed by the learned Tribunal for the relief sought in the respective Civil Miscellaneous Applications, the said applications are misconceived. Under Section 174 of the Motor Vehicles Act, the claims Tribunal may on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the manner as an arrear of land revenue. Therefore, while exercising the powers under Section 174 of the Motor Vehicles Act, the Tribunal is not required to decide the inter se liability and/ or dispute between two joint tort-feasors and is not required to determine and apportion inter se liability between joint tort-feasors. It is to be noted that as such while passing the judgment and award in favour of the original claimants, the tribunal had ordered that the opponents are jointly and severally liable to pay the compensation to the claimants. When the opponents are held liable jointly and without any apportionment of liability which normally applies in the case of contributory negligence, all are jointly liable to pay. Identical question came to be considered by the Division Bench in the case of Amarsi Jugabhai and Others v. Vijayaben Hemantlal Dhulia and ors reported in 1996(1) GLH 1007 and this Court has considered the concept of joint tort-feasors. In para 22 and 23 the Division Bench has observed and held as under: 22. It is well settled that where tow or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required for each tortfeasor is liable for damage which he caused. In para 22 and 23 the Division Bench has observed and held as under: 22. It is well settled that where tow or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required for each tortfeasor is liable for damage which he caused. Persons are not joint tortfeasors merely because their independent wrongful acts have resulted in one damnum. Where damage is caused as the result of torts committed by two or more tortfeasors, the tortfeasors may be (i) joint tortfeasors, (ii) several tortfeasors causing the same damage or (iii) several tortfeasors causing different damage. Who, then, are joint tortfeasors ? One way of answering the question is to see whether the cause of action against each tortfeasors is the same. If the same evidence would support an action against each, they are joint torrfeasor. Wrong doers are deemed to be joint trotfeasors where cause of action against each of them is same, viz. that the same evidence would support the action against them individually. They will be jointly liable for a tort which they both commit or for the commission of which they are both responsible and not for a tort where each is responsible for a different injuria and the two injuriae happen to produce the same damnum. All persons who aid or counsel, direct or join in committal of wrongful act, are joint tortfeasors. Normally, joint liability arises under three circumstances: (I) Agency when one person employs another do do an act which turns out to be a tort (ii) vicarious liability, i.e. the liability arising from relationship such as master and servant, principal and agent, guardian and ward etc. and (iii) joint action where two or more persons combine together to commit an act which amounts to a tort. Persons are said to be joint tortfeasors when their separate shares in the commission of act are done in furtherance of a common design. Joint tortfeasors are jointly and severally liable for the whole damage resulting from the tort. They may be sued jointly and severally. If sued jointly damage may be levied from all or either. Where a person is injured without any negligence of two drivers of the colliding vehicles, it is not a case of contributory negligence but a case of what has been described by Pollock as injury by composite negligence. They may be sued jointly and severally. If sued jointly damage may be levied from all or either. Where a person is injured without any negligence of two drivers of the colliding vehicles, it is not a case of contributory negligence but a case of what has been described by Pollock as injury by composite negligence. In a suit for "composite negligence" meaning thereby negligence of two or more persons other than victim of the negligence, the plaintiff is not bound to a strict analysis of the proximate of immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover in the whole more than his whole damage. He has right to recover the full amount of damage from any of the joint tortfeasors. Those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tortfeasors is joint and several. 23. Where a person is injured in a motor accident which occurs not on account of his negligence, but because the drivers of collided vehicles were negligent, the claimants are entitled to damage jointly and severally from the negligent respondents. Every wrong doer is liable for the whole damage and it does not matter whether they acted between themselves as equals. A decree passed against two or more tortfeasors can be executed against any one of the defendants and such defendant can be compelled to pay the entire amount of damages decreed. It is further clear that the defendant who is compelled to pay the entire amount of damages decreed has a right to contribution from the other wrong doer. The liability in the case of composite negligence, unless must normally should not be apportioned because the claimant is able to recover the whole amount or compensation from owner or driver of either vehicles. In case of composite negligence, liability for compensation in normal circumstances should not be apportioned, as both wrong doers are jointly and severally liable for the whole loss. In case of composite negligence, liability for compensation in normal circumstances should not be apportioned, as both wrong doers are jointly and severally liable for the whole loss. Rule of apportionment of liability applies in a case of contributory negligence, i.e. where the injured himself is also guilty of negligence". 8. It is to be noted that as such in the present case the appellant original applicant has neither produced the certified copy of the original judgment and award nor even a simple copy on record. If at all the appellant had any remedy, which is to initiate independent proceedings by way of suit for inter se liability / negligence which at one point of time the appellant-original applicant did initiate by way of filing suits, however the said suits came to be dismissed for want of jurisdiction. At that stage, the appellant-original applicant was required to challenge the said order passed by the Civil Court before the Higher Forum, however due to ill advise the said order passed by the Civil Court is not further challenged and the applications are preferred under Section 110(E) of the Motor Vehicles Act i.e. new Section 174 of the Motor Vehicles Act, which according to this Court would not be maintainable for the relief sought. 9. Now, so far as reliance placed upon the decision of the Bombay High Court in the case of Balkrishna Ramchandra Nayan and others (supra) is concerned, with respect this Court does not agree with the said decision. It is to be noted that as such the Division Bench considered the earlier direction of the High Court while dismissing the appeals by which it was specifically observed that Tribunal to decide the question of liability of the Insurance Company on its application for the remaining amount under Section 110(E) of the Motor Vehicles Act after giving an opportunity to all the parties and the Division Bench considered that the said direction had attained the finality and it was not even upset by the Hon'ble Supreme Court and therefore, the Division Bench has held that said direction had attained the finality, the proceedings under Section 110(E) of the Motor Vehicles Act would be maintainable. Even otherwise, it is to be noted that in the said case, it was the case on behalf of the Insurance Company that liability to pay compensation was limited to Rs. Even otherwise, it is to be noted that in the said case, it was the case on behalf of the Insurance Company that liability to pay compensation was limited to Rs. 20,000/- only for which Insurance Company issued policy. Therefore, as such on facts the said decision would not be of any assistance to the appellant. Even otherwise on merits also on true interpretation of Section 174 of the Motor Vehicles Act, this Court is of the firm opinion that the Tribunal has no jurisdiction under Section 174 of the Motor Vehicles Act (new) and/or under Section 110(E) of the Motor Vehicles Act (old) to determine and apportion the inter se liability between the joint tort feasors and for the aforesaid, Section 174 of the Motor Vehicles Act (new) and/or Section 110(E) of the Motor Vehicles Act (old) would not be applicable at all and the only remedy available to the joint tort feasors would be to initiate appropriate independent proceedings by way of suit for their inter se liability/ negligence. It is to be noted that as original judgment and award passed by the Tribunal is not on record neither tribunal nor this Court is in a position to consider the findings of the learned Tribunal while passing the original judgment and award with respect to inter se liability and / or negligence. However, the fact remain that while deciding the original claim petitions, the Tribunal had ordered that all the opponents are jointly and severally liable to pay compensation to the original claimants. Therefore, the learned Tribunal has rightly rejected the Civil Miscellaneous Applications which were preferred under Section 110(E) of Motor Vehicles Act (Old)for the reliefs which are referred to hereinabove. No illegality has been committed by the Tribunal in dismissing the aforesaid Civil Miscellaneous Applications. 10. In view of the above and for the reasons all the Appeals fail and the same deserve to be dismissed and are accordingly dismissed. However, it will be open for the appellants to pursue other remedy available to them for claiming amount from the other joint tort feasors and as and when such proceedings are initiated the same may be considered in accordance with law and on merits as this Court has not observed anything on merits so far as dispute between the joint tort feasors are concerned. With this, all these appeals are dismissed. Appeals dismissed.