Oriental Insurance Company Limited vs Smt. Meena Kumari and Others

K. Kannan, J.—The Insurance Company is in appeal challenging the award passed in a petition filed for compensation u/s 163-A by the representatives of the deceased, who was a pillion rider in the insurer''s scooter. The accident is said to have arisen by a collision with a Cielo car when the scooterist and the pillion rider fell from the vehicle and a Maxi cab drove over the person causing the death. According to him, the case could not have been prosecuted without making the owners of the Cielo car and the Maxi cab which had ultimately caused the death of the person. The Learned Counsel refers to a decision of this Court in Hirabhai Nanubhai Desai Vs. The State of Gujarat and Others, where the Bench of this Court held that the joint tortfeasors were necessary parties and if yet another vehicle, who had caused the accident, was not added, the other joint tort-feasors would not be liable. I find from the judgment that the case did not go as far as to say that the petition itself was not maintainable but it found that the claim cannot survive against a person, who was not added as a party. This decision answers therefore only one issue of how much money could be recovered from a person, who had not been wholly responsible for the accident but responsible only to and whose liability ought to be apportioned with yet another tortfeasor. There have been several decisions after the decision of the Bench of this Court where the consistent string of authorities is even in a case of composite negligence, it is unnecessary for a claimant to implead all the joint tort-feasors. Matter of apportionment amongst the tort-feasors ought not to be the concern of the claimant. It shall be appropriately worked out when anyone among tort-feasors makes a claim for contribution against other members who are involved in the accident. This has been considered by a decision of this Court itself in a subsequent decision in Oriental Insurance Company Limited v. Narinder Kaur 2001 (1) 127 PLR 138. It is just not a one-off decision of this Court but that has also been the preponderance of approach on every other High Court. To wit, please see The Divisional Manager, Oriental Insurance Co. Ltd., Cuttack Divisional Office Vs. Jasoda Mohanta and Others, Uttar Pradesh State Road Transport Corporation v. Rajani 2007 ACJ 1771 : 2009 (3) T.A.C. 462 (All.); Shaik Ali Sahel v. K. Rajashree 2007 (1) TAC 581 (AP); TNSTC v. Isappiappa- 2007 (1) TN MAC 527; Gujarat State Road Transport Corporation Vs. Union of India and Others, and United India Fire and General Insurance Co. Ltd. Vs. Varghese and Others, The law does not require any further exposition than how it has been considered in every part of the country. It will be too late in the day to urge for a proposition which is untenable.

If the claim by the claimants against the insurer of the vehicle which under the terms of the policy was bound to satisfy the claim of a pillion rider, it will enquire no more than to see (i) whether the terms of the policy cast a liability, and (ii) whether the death or injury had been caused by the result of the use of a motor vehicle. I am not prepared to consider the apportionment of liability of the Cielo car and Maxi Cab in their absence for any finding regarding apportionment in their absence will not bind them. It will be open to the insurer to satisfy the claim and sue for contribution against the other vehicles and the respective insurers, if it is so advised. The award is confirmed and the appeal is dismissed.