FAO No.195 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.195 of 2006 Date of Decision. 23.09.2010 Mamta and others ......Appellants Versus Happy son of Charanjit and others ......Respondents Present: None for the appellants. Mr. Jagtar Kureel, Advocate for Mr. D.P. Gupta, Advocate for the insurance company. 2. FAO No.576 of 2006 National Insurance Company Limited, Regional Office No.II, SCO No.337-340, Sector 35-B, Chandigarh through Shri Gopal Krishan, Administrative Officer. ......Appellant Versus Smt. Mamta widow of Shri Sanjay Dubey and others ......Respondents Present: Mr. Jagtar Kureel, Advocate for the appellants. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The insurance company is on appeal challenging the maintainability of a petition under Section 163-A of the Motor Vehicles Act in a case where the claimant contended that the FAO No.195 of 2006 -2- deceased was earning more than Rs.5,000/- per month. The attempt of the insurer was to state that in terms of the judgment in Deepal Girishbhai Soni Vs. United India Insurance Company Limited 2004 ACJ 934, the provision could be invoked only in cases of persons whose annual income was less than Rs.40,000/- and in the case where the claimants contended that the earning was more than Rs.40,000/-, the petition could not have been entertained. 2. I reject this contention for the only reason that the Tribunal did not accept the contention that the deceased had an annual income of more than Rs.40,000/-. On the other hand, it determined the annual income to be less than Rs.40,000/- namely Rs.36,000/- and therefore, in the manner in which the Tribunal itself assessed the income, the maintainability cannot be questioned. There is nothing inherently defective in maintaining the petition by the only reason that the income was stated to be in excess of Rs.40,000/-, when the Tribunal did not accept such a contention. I would, therefore, hold that the decision of the Hon'ble Supreme Court in Deepal Girishbhai Soni's case (supra) would not apply. 3. This case was of a collision between the maruti car in which the deceased was travelling and a truck. The claimants had chosen not to file the case against the truck or its insurer but restricted the case only against the owner and insurer of the maruti car. The learned counsel would contend that in cases of collision and the matter involving in composite negligent, the claimants could not have prosecuted the case against only one of the joint tort feasors. This contention is erroneous, in view of the judgment of the FAO No.195 of 2006 -3- Hon'ble Supreme Court in Deepal Girishbhai Soni (supra) that the non-obstante clause occurring in Section 163-A of the Motor Vehicles Act shall allow even a person making the claim who had contributed to the accident could still make a claim under the provision. Further, if the case is not instituted against the other joint tort feasor also, the claim petition cannot be said to be not maintainable. In the alternative, the learned counsel would also urge that if a liability were to be apportioned, the claimant could have been granted compensation for 50% and the claimant should have been directed to proceed against the other vehicle for the remaining amount. This, in my view, is not the correct position of law. Learned counsel also refers to a judgment of a Division Bench of this Hon'ble Court in Bhajan Lal Bishnoi Vs. Rajasthan State Road Trans. Corpn. 1991 ACJ 651 to contend that a joint tort feasor is a necessary party and if one joint feasor is not impleaded, the liability cannot be fastened on the other joint feasor only. This, in my respectful view, is no longer a binding precedent in view of the subsequent decision of Division Bench of this Court itself in Oriental Insurance Company Limited Vs. Narinder Kaur 2001 (1) 127 PLR 138. There have been preponderance of authorities coming from other High Courts in India to hold that in case of composite negligence, it is perfectly tenable for a third party claimant to initiate action against only one of the joint tort feasors and leave it to such tort feasor to initiate independent action for seeking for contribution. This Court has dealt with this issued and considered all the relevant cases in Oriental Insurance Company Limited Vs. FAO No.195 of 2006 -4- Meena Kumari and others in FAO No.4246 of 2006 dated 24.08.2010. The plea for apportionment of liability is, therefore, rejected. On the other hand, it shall be open to the insurance company, if it is so advised, to take independent action for suing the owner and insurer of the other truck, which was involved in the accident if it can establish its identity and prove the liability in other proceedings. 4. The awards are confirmed in full and the appeal filed by the insurance company is dismissed. It is stated by the learned counsel for the insurance company that the whole claim under the award is satisfied fully. The amount deposited at the time of filing of appeal may, therefore, be permitted to be withdrawn on its application. 5. There is also an appeal for enhancement in FAO No.195 of 2006. There is no representation on behalf of the claimant and it is dismissed for default. (K.KANNAN) JUDGE September 23, 2010 Pankaj* FAO No.195 of 2006 -5-