When an accident, involving two vehicles and driver of one of the unknown vehicle sped away after the accident, whether in such situation, claim petition is maintainable against the other tortfeasor, in view of the provisions contained under Sections

When an accident, involving two vehicles and driver of one of the unknown vehicle sped away after the accident, whether in such situation, claim petition is maintainable against the other tortfeasor, in view of the provisions contained under Sections

Hon'ble Division Bench of Gujarat High Court in First Appeal

No.3354 of 2000 with Civil Application No.746 of 2005, dated

13.7.2005 has held that in such situation claim petition is not

maintainable. But Hon'ble Gujarat High Court in the case of

Bhanuben P. Joshi V/s. Kantilal B. Parmar, reported in 1994 ACJ

714 (DB) has held otherwise. Facts of the Bhanuben P. Joshi

(supra)

In the said case accident occurred because one

unknown truck dashed the motor cycle from behind and after

the accident, truck driver sped away with the truck and

remained unidentified and pillion rider sustained fatal

injuries. Claimants of the said claim petition averred that

motor cycle was being driven by its rider at excessive speed

and in rash and negligent manner. Tribunal dismissed the

claim petition by holding that there was no rashness on the

part of the motor cyclist. After noting the said facts Hon'ble

Gujarat High Court has observed that motor cycle was being

driven in rash and negligent manner and in flagrant violation

of traffic rules and regulations and finally reversed the

finding of Tribunal.

 It is also held in para No.9 of the above referred ratio,

namely Bhanuben P. Joshi (supra) that victims of road

accident are entitled to claim compensation from all or any of

the joint tortfeasors, it would not be necessary to apportion

the extent of contribution of each driver of happening of

unfortunate accident.

From the above referred ratios it becomes clear that even if

driver and owner of the unknown vehicle is not joined as parties

opponents, claim petition is maintainable against any one of the

tortfeasors.

The other issue is whether in a Hit and Run case, claimant

can claim fixed compensation of Rs.25,000/u/

s 140 the M.V.

Act when claimant has not filed an application under the scheme

framed u/s 161 of the M.V. Act. In A. Prakash v/s General

Manager, reported in 2015 ACJ 203 (AP), it is held that

claimant is entitled to get Rs.25,000/u/

s 140 of the M.V. Act.

Whether all the joint tortfeasors are required to be joined as party opponents in the claim petition:

Hon'ble Gujarat Court in the case of O.I.Com.Ltd. v/s

Zubedaben Pathan, in F.A. No.651 of 2012 and judgment dated

18.02.2010, delivered by Hon'ble Kerala Court in the case of U.I.

Com. Ltd. v/s Mariamma George, in M.A.C.A. No.744 of 2005

have held that the claimant/s is/are not entitled to recover

amount of compensation, jointly and severally from the

insurance company/companies, if all the tortfeasors are not

joined.

But Hon'ble Gujarat High Court in the case of Amarsing

Jugabhai v/s Vijyaben Dhuliya, reported in 1996(3) GLR 493

has held in para No.23 that:“

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 wrongdoer

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 wrongdoer.

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 of 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 wrongdoers 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.”

16.3. Hon'ble Gujarat High Court in the case of Kusumben

Vipinchandra Shah v. Arvindbhai Narmadashankar Raval,

reported in AIR 2007 Guj. 121. Wherein it is held that:“

As held in Gujarat State Road Transport Corporation v.

Gurunath Shahu (supra), the finding given by the Tribunal in

such a case regarding apportionment of liability would be

tentative for the purpose of subsequent proceeding which

might be filed by the defendant tortfeasor against the other

joint tortfeasor who was not a party to the first proceeding.

But such tentativeness for the purpose of contribution between

two joint tortfeasors did not at all affect the right of the

plaintiff claimant to recover full damages from the defendant

tortfeasor against whom the first proceeding was filed”.

In the recent decisions, in the cases of Oriental Insurance v/s

Meena Variyal, reported in 2007 ACJ 1284 (SC), Pawan Kumar

v/s Harkishan Dass Mohan, reported in 2014 ACJ 704 (SC)

(FB), Hon'ble Apex Court has taken the view that where a

person is injured/expired 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 and such

claimants are not required to join all tortfeasors as party. From

the above referred ratios it becomes clear that claimant/s is/are

not required to join all the tortfeasors as party opponent/s.

16.5. Hon'ble Apex Court in the case of Khenyei v/s New India

Assurance Com. Ltd, reported in 2015 ACJ 1441 has laid down

following guidelines in the cases composite negligence and

apportionment of inter se liability of joint tortfeasors.

(i) In the case of composite negligence, plaintiff/claimant is

entitled to sue both or any one of the joint tortfeasors and to

recover the entire compensation as liability of joint tortfeasors is

joint and several.

(ii) 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.

(iii) 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 payment to the plaintiff/claimant to the extent it 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 main case one

joint tort feasor can recover the amount from the other in the

execution proceedings.

 (iv) 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 tort

feasors. In such a case, impleaded joint tort feasor should be left,

in case he so desires, to sue the other joint tort feasor in

independent proceedings after passing of the decree or award.