Rakesh Kumar vs Regional Manager U.P.S.R.T.C. And 3 ...

1. Heard learned Counsel for the appellant and Sri Swapnil Sinha, the Counsel for the respondent no.4.

2. The present appeal has been filed by the appellant challenging the award dated 03.08.2017 insofar as it awards 50% compensation out of total amount awarded against the respondent no.4 only.

3. The facts in brief are that the appellant was a passenger of Innova Car No.UA 08F 9385 which met with an accident with a Roadways Bus bearing No.UP 11T 9527. In the claim petition, it was alleged that the driver of the Innova Car as well as the driver of the Roadways bus were driving the vehicles rashly and negligently and on account of hit and collision, the appellant suffered extensive injuries. The Owner and the Insurer of the Innova Car were not impleaded as party-respondent in the claim petition. The Tribunal based upon the pleadings framed as many as 4 issues to be decided. While deciding the Issue No.1 in respect of negligence of the vehicles, it was held that there was a composite negligence of the two vehicles and as the appellant himself had not impleaded the owner of the car in which he was sitting as well as its Insurance Company, the liability of the Insurer of the bus, the respondent no.4, was assessed as 50% of the awarded amount. There is no dispute with regard to the quantum awarded by either of the parties, however, the Counsel for the appellant states that the entire amount ought to have been awarded against the respondent no.4, the Insurer of bus, with which, the accident was caused.

4. The Counsel for the respondent no.4, on the other hand, submits that even as per the own pleadings of the appellant, the vehicle Innova was also being driven rashly and negligently, which resulted into the accident, thus, no error can be seen in the amount awarded, which awarded 50% of the compensation against the respondent no.4.

5.As the abovesaid issue is involved in the appeal, what is to be decided by this Court, as to whether the amount of 50% awarded by the Tribunal against the respondent no.4 is justified in the light of the facts of the case and the pleadings or not.

6. There is no dispute that in the claim petition, it was alleged by the claimant that the vehicle, in which the claimant was sitting, was driven rashly and negligently. There is no dispute that the owner and the insurer of the Innova were not impleaded as defendants in the claim petition.

7. In view of the said admitted position, the question that arises is whether the entire amount could be awarded against the respondent no.4, or the Tribunal is justified in awarding 50% of the compensation, as has been done by means of the amount awarded.

8. The said question was considered extensively by the Hon'ble Supreme Court in the case of Khenyei vs New India Assurance Company Ltd. and others: 2015(2) TAC 677 (SC) and specific distinction in between the contributory negligence and the compositive negligence was considered in detailed in paragraph 16, which reads as under:

"16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. 2014 (3) SCC 590, the decisions in T.O. Anthony (supra) and Hemlatha (supra) have been affirmed, and this Court has laid down that where plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff?s claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa & Ors. [2008 (13) SCC 198] and also as to joint tort feasors. This Court has referred to Charlesworth & Percy on negligence as to cause of action in regard to joint tort feasors thus:

?42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under :

Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually?.. Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.? The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them. This Court in National Insurance Co. Ltd. v. Challa Bharathamma & Ors. [2004 (8) SCC 517] with respect to mode of recovery has laid down thus :

?13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executive Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.? "

9. In view of the categorical pronouncement of the Hon'ble Supreme Court with regard to the remedy available to the joint tortfeasors where one of the tortfeasor is not impleaded. In the present case, the respondent no.4 ought to have sought impleadment of the joint tort-feasors, the owner of the Innova Vehicle as well as the Insurer and to recover the loss from the said joint tort-feasors. Admittedly neither the claimant nor the owner of the bus had got the owner of the Innova Vehicle and the Insurer impleaded as parties. The Tribunal is clearly in error in denying the compensation to the claimant to the entire amount as assessed, against the respondent no.4. The Tribunal should have awarded the entire compensation against the respondent no.4 leaving it open to recover the same from the joint tort-feasors, having failed to do so, the award to that extent needs to be set aside.

10. The award is modified to the extent that the respondent no.4 shall pay the entire amount awarded of Rs.4,67,555/- with interest @ 7% p.a. from the date of claim till the actual payment/ realization with a right to recover from the joint tort-feasors in accordance with law, if so advised.

11. The appeal stands allowed to the extent that the entire amount of award shall be paid to the appellant by the Insurance Company respondent no.4 within a period of three months from today.

12. In case the amount is not paid within the said period of three months, the respondent no.4 would be further liable to pay additional interest @ 2% per annum from the date of passing of the order by this Court.

13. 'The respondent no.4 would have right to recover the said amount from the joint tort-feasors, if so advised in accordance with law.

14. The awarded amount shall be paid to the appellant after deducting the amounts, which have already been deposited in terms of the award.

(Pankaj Bhatia,J.)

May 6, 2026

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