Sunday, 11 April 2021

Whether MACT can apportion liability for payment of compensation to the victim of the motor accident between two tortfeasors?

 Insofar as judgment of Supreme Court in case of Khenyei v/s. New India Assurance Co. Ltd. and Ors., (supra) relied upon by the learned counsel for the respondent no.1 is concerned, it is held by the Supreme Court that the apportionment of compensation between two tortfeasors vis a vis the plaintiff/claimant is not permissible. It is held by the Supreme Court that liability of the joint tortfeasor is joint and several. 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. He can recover at his option whole damages from any of them. There is no dispute about the proposition of the law laid down by the Supreme Court in case of Khenyei v/s. New India Assurance Co. Ltd. and Ors., (supra) relied upon by the learned counsel for the respondent no.1.{Para 44}

45. In my view, since the respondent no.1 had filed an application for

compensation under section 163-A of the Motor Vehicles Act, 1988, there was no question of the respondent no.1 proving any negligence or default against any of the tortfeasors. A perusal of the impugned judgment and award passed by the Tribunal clearly indicates that the Tribunal has rendered a perverse finding that the compensation amount of Rs.38,94,200/- was required to be apportioned equally between the owner of the offending vehicle and the owner of the Tata Magic vehicle in which the respondent no.1 was travelling. In my view, the impugned judgment and award deciding the negligence at the first instance on the part of the driver of the offending vehicle as well as Tata Magic vehicle itself is contrary to the section 163 of the Motor Vehicles Act and shows total perversity. There is thus no question of apportionment of any liability in the ratio of 50 : 50 or in any other ratio between the owner of the offending vehicle and the owner of the Tata Magic vehicle. The judgment and award of the Tribunal thereby rendering the findings on the issue of negligence for the purpose of deciding the extent of contributory negligence and thereafter dividing the compensation at two parts is ex-facie perverse.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 54 OF 2013

ICICI Lombard General Insurance  Company Limited,  Vs  Kumar Aftab Nasim Ansari

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Whether the claimant can seek compensation for injury due to a motor accident in both U/S 163A and S 166 of the Motor vehicles Act?

Supreme Court in the said judgment clearly held that having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under Section 163-A or under Section 166 of the Motor Vehicles Act does not arise. It is held that the remedy for payment of compensation both under Section 163-A and Section 166 being final and independent of each other as statutorily provided, a claimant

cannot pursue his remedies thereunder simultaneously. One must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both. {Para  28 }

In my view, the scheme of the Motor Vehicles Act providing for

compensation on the basis of structured formula under Section 163-A read with Second Schedule and compensation under Section 166 of the Motor Vehicles Act is different. Though in the application under Section 166 for compensation, the Tribunal can consider the compensation prescribed under Second Schedule as a guide, Tribunal cannot consider the compensation payable under Section 166 of the Motor Vehicles Act while considering an application under Section 163-A. The Tribunal can award the compensation in an application under Section 163-A only on the basis of structured formula prescribed under Second Schedule appended to the Motor Vehicles

Act, 1988. The Tribunal cannot allow part of the compensation by granting part benefit under Second Schedule appended to the Motor Vehicles Act and partly by awarding compensation payable under Section 166 of the Motor Vehicles Act, 1988. The claimant once having applied for compensation under Section 163-A on the basis of structured formula prescribed under Second Schedule, cannot simultaneously seek compensation also under Section 166 of the Motor Vehicles Act, 1988.{Para 38 }

There is no merit in the submission of the learned counsel that while awarding just compensation though the application was filed under section 163A, Tribunal was empowered to grant compensation payable under section 166 of the Motor Vehicles Act, 1988.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 54 OF 2013

ICICI Lombard General Insurance  Company Limited,  Vs  Kumar Aftab Nasim Ansari

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 26th JUNE, 2020

Citation: 2021(2) MHLJ 295

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Whether children born out of void marriage are class 1 Legal heirs as S 8 of the Hindu Succession Act?

This Court in the matter of Laxmibai

and others vrs. Limbabai, reported in 1983 Mh.L.J.103, has

recorded a finding that the children born out of the marriage

which is void cannot be termed illegitimate one and they are

covered by the expression ‘son and daughter - class-I' for

Scheduled 8 of the Hindu Succession Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATER JURISDICTION

SECOND APPEAL NO. 269 OF 1992

 Shri Vishnu Laxman Padule Vs  Laxman Rama Padule,


CORAM: N.W.SAMBRE, J .

DATE : 9 JANUARY, 2020.

Citation: 2021(2) MHLJ 288

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Whether court can direct the party to serve a bailable warrant to the witness personally?

 It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.{6}

7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants.
Rajasthan High Court
Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978
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