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2018 DIGILAW 3472 (MAD)

Mallesan @ Mallesh v. P. Shanthi

2018-10-03

M.S.RAMESH

body2018
JUDGMENT 1. The order under challenge in the present Civil Revision Petition is against allowing the application seeking for impleadment of the owners of the two wheeler bearing Registration No. TN 29 AD 3655. According to the learned counsel for the second respondent, the accident occurred out of rash and negligence of the two wheeler bearing Registration No. TN 29 AD 3655 as evidenced in the FIR and as such, they are necessary parties in the proceedings before the trial Court. It is on this basis, the second respondent herein had filed the application for impleading the respondents 3 to 6. 2. The learned counsel for the petitioner by relying upon the Judgment of the Hon'ble Apex Court reported in the case of Kheynei vs. New India Assurance Co. Ltd. (2015) 9 SCC 273 submitted that the non-impleadment of the other parties would not be fatal to the proceedings and that, since the present case is alleged to be one of composite negligence, one of the joint tort feasors is a sufficient party to the proceedings and the non- impleadment of the other tort feasors is not required. 3. The learned counsel for the second respondent on the other hand submits that the FIR clearly discloses the involvement of two wheeler bearing Registration No. TN 29 AD 3655 and as such, the respondents ought to have impleaded them as a party respondent. By not impleading the necessary parties, this respondent should not be burdened to initiate independent proceedings after the award against other tort feasors, which according to him would result in multiplicity of proceedings. It is his further submission that the tribunal had correctly ordered the application made by its respondents by impleading the joint tort feasors as party respondents. 4. I have given careful consideration to the submissions made by the respective counsels. 5. The claim petition filed by the petitioner herein discloses the involvement of three vehicles in the accident. It is a categorical case of the claimant that the accident occurred when the two wheeler bearing Registration No. TN 29 AD 3655 hit the claimant's two wheeler which resulted in both occupants being thrown down from their two wheelers and consequently, the lorry bearing Registration No. TN 52 H 0992 insured with the second respondent herein had ran over the claimant. The FIR also refers to the involvement of the three vehicles in the accident and as such, the petitioner did have knowledge of the fact of the involvement of two wheeler bearing Registration No. TN 29 AD 3655. The petitioner herein had not impleaded the concerned owners of the two wheeler bearing Registration No. TN 29 AD 3655 in the first instance. The second respondent herein had filed a counter on 25.01.2016, wherein a specific plea was taken for the involvement of the other two wheeler bearing Registration No. TN 29 AD 3655 and as such, the counter was filed to the effect that the claim petition requires to be dismissed on the ground of non-joinder of parties. Though the counter was filed way back on 25.01.2016, the petitioner herein had not taken steps to implead the concerned owners of the vehicle at that point of time also. 6. It is the grievance of the petitioner that the respondent herein had filed the application at a belated stage on 03.04.2017 seeking for impleading the owners of the two wheeler. I am unable to countenance such a statement of the petitioner. In the given set of facts, the petitioner ought to have impleaded the owners of all the vehicles involved in the accident. Even otherwise, when the respondent herein had filed a counter raising an objection that the claim petition deserves to be dismissed for joint tortfeasors of the parties, the petitioner could have taken steps atleast at that stage to implead the said parties. As such, it would not be appropriate to state that the respondent herein had filed the application for impleadment at a belated stage. 7. The learned counsel for the petitioner had placed strong reliance on the Judgment of the Hon'ble Apex Court reported in the case of Kheynei vs. New India Assurance Co. Ltd. (2015) 9 SCC 273 . The findings of the Hon'ble Apex Court was summarized as follows: 22. What emerges from the aforesaid discussion is as follows: 22.1. In the case of composite negligence, the plaintiff/ claimant is entitled to sue both or any of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. In the case of composite negligence, the plaintiff/ claimant is entitled to sue both or any of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/ claimant to the extent is has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in the main case one joint tortfeasors can recover the amount from the other in the execution proceedings. 22.4. It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award. 23. Resultantly, the appeals are allowed. The judgment and order passed by the High Court is hereby set aside. Parties to bear the costs are incurred. 8. The Judgment of the Hon'ble Apex Court is precise to the effect that the non-joiner of joint tortfeasors in accident involving composite negligence will not be fatal to the claim. It is the ruling of the Apex Court that the claimant is entitled to sue all the joint tortfeasors or any of the joint tortfeasors. While that being so, it cannot be said that the claim petition by not impleading the owners of the vehicle bearing Registration No. TN 29 AD 3655 is barred by law and that, the petitioner is entitled to maintain the claim petition without impleading them in view of the Judgment of the Hon'ble Apex Court extracted above. 9. While that being so, it cannot be said that the claim petition by not impleading the owners of the vehicle bearing Registration No. TN 29 AD 3655 is barred by law and that, the petitioner is entitled to maintain the claim petition without impleading them in view of the Judgment of the Hon'ble Apex Court extracted above. 9. Nevertheless, it is not the observation of the Hon'ble Apex Court that impleading the other tortfeasor as a party, will be an impediment to the proceedings in case an award is passed without impleading the joint tortfeasor. In the aforesaid case, the question of determination of the liability in composite negligence of the drivers of more than one vehicle was raised as a ground of defence, after the award was passed. It is in this background that the Apex Court had held that the non-impleadment of the joint tortfeasor could not nullify the claim made. As a matter of fact, the Apex Court had also observed that when the other joint tortfeasor are not impleaded in a claim petition before the tribunal, the accident of the composite negligence of the drivers of other vehicles should not be determined and that the question should be left open to enable the respondent to initiate independent proceedings against other tortfeasors after passing of the award. But, when an application is filed before the tribunal prior to passing of an award, it cannot be said that the tribunal is not bound to take cognizance of the averments in the application for the purpose of ordering impleadment of the necessary parties. By allowing such an application, the tribunal would not only avoid multiplicity of proceedings, but the same may also enable the tribunal to determine the extent of composite negligence between the drivers of all the vehicles involved in the accident. As a matter of fact, such an issue of determination of the extent of composite negligence would also benefit the claimant. 10. The Court below while considering the Judgment of the Hon'ble Apex Court had held that the Apex Court had only formulated the principles and had not held that the petition for impleadment is not liable to be allowed. I do not find any infirmity in the said observations. 11. 10. The Court below while considering the Judgment of the Hon'ble Apex Court had held that the Apex Court had only formulated the principles and had not held that the petition for impleadment is not liable to be allowed. I do not find any infirmity in the said observations. 11. In view of the above observations made by this Court, the implead petition having been filed prior to passing an award, would only enable the tribunal to properly appreciate the issue with regard to determination of the extent of the composite negligence between the drivers of the vehicles involved in the alleged accident. As such, the order of the tribunal allowing the implead petition does not suffer from any infirmities. 12. It is hereby made clear that by sustaining the order of the tribunal allowing the implead petition, this Court has not expressed any of its views with regard to the liabilities of the impleaded respondents or the second respondent-Insurance Company. 13. It is needless to point out that while deciding the issues in the claim petition, the tribunal shall independently determine the extent of composite negligence of the drivers involved in all the vehicles. It is also made clear that by sustaining the order of the tribunal, this Court has not absolved the liability of the respondents herein and that the liabilities shall be determined by the tribunal based on the evidence available. 14. Since the petitioner has raised a ground that serious prejudice would be caused to him in view of the delay that could occur by impleading the present parties, it would be appropriate to direct the tribunal to complete the proceedings within a stipulated time. At this juncture, the learned counsel for the petitioner submitted that the evidences of the respondent has also been completed. 15. In the light of the above observations made, the Civil Revision Petition stands dismissed. Nevertheless, there shall be a direction to the learned Additional Special Judge, Krishnagiri to complete the proceedings in M.C.O.P. No. 96 of 2015 within a period of eight weeks from the date of receipt of a copy of this order. No costs.