DAHIBEN KHETABHAI HAJANI vs BAHADUSINH PRATAPSINH JADEJA
- Court
- Gujarat High Court
C/FA/2461/2010 JUDGMENT DATED: 07/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2461 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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DAHIBEN KHETABHAI HAJANI & ORS.
Versus
BAHADUSINH PRATAPSINH JADEJA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6,7,8,9
MR ANAL S SHAH(3988) for the Defendant(s) No. 2
MR MANRAJ A BAROT(6224) for the Defendant(s) No. 3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 07/07/2026
JUDGMENT
1. Captioned appeal is filed against the impugned judgment
and award dated 29.08.2009 passed by the Motor Accident
Claims Tribunal (Auxi.) & Additional District Judge, Jamnagar in
Motor Accident Claim Petition No.81 of 2005, whereby the
learned Tribunal had partly allowed the claim petition and
awarded a sum of Rs.5,50,000/- as a compensation along with
interest at the rate of 9% per annum from the date of filing of the
claim petition till its realization.
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2. The succinct facts leading to the filing of the captioned
appeal are that on 22.01.2005, Khetabhai Karnabhai Hajani was
travelling in the truck bearing registration No.GJ-10-V-5973
along with goods, as the owner of the said goods. When he
reached the place of accident, the driver of the said truck was
driving the truck at an excessive speed in a rash and negligent
manner, in the meantime, one another truck bearing registration
No.GJ-10-T-5932 came there, and due to rash and negligent
driving of the driver of the truck bearing registration No.GJ-10-
V-5973, the two trucks collided. As a result of the said accident,
Khetabhai Karnabhai Hajani sustained grievous injuries and
thereafter succumbed to the said injuries.
2.1. Having been served with the notice of claim petition, the
opponent No.2 & 4-Insurance Companies appeared and filed
their Written Statements, thereby denying the contents of the
claim petition and prayed for dismissal of the claim petition.
2.2. Having considered the pleadings of the parties, oral as well
as documentary evidence on record and the submissions
canvassed by learned advocates for the parties, the learned
Tribunal had awarded a sum of Rs.5,50,000/- as a
compensation along with the interest at the rate of 9% per
annum from the date of filing of the claim petition till realization.
2.3. Being aggrieved and dissatisfied with the impugned
judgment and award, the appellants herein preferred the
captioned appeal.
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3. Heard learned advocates for the parties.
4. Mr. Nishit A. Bhalodi, learned advocate appearing on
behalf of the original claimants/appellants herein vehemently
submitted that the learned Tribunal has attributed the
negligence to the drivers of both the vehicles involved in the
accident i.e. driver of truck bearing registration No.GJ-10-V-
5973 and driver of truck bearing registration No.GJ-10-T-5932.
He further submitted that at the time of accident, the deceased-
Khetabhai Karnabhai Hajani was travelling in a truck bearing
registration No.GJ-10-V-5973 and he succumbed to the injuries
owing to the composite negligence of the drivers of both the
vehicles. He further submitted that the learned Tribunal ought to
have directed all the respondents jointly and severally, except
respondent No.2- Oriental Insurance Company Limited, to
satisfy the impugned judgment and award. However, the learned
Tribunal has wrongly exonerated the respondent No.3 and 4. He
further submitted that in view of the ratio laid down by the
Hon’ble Supreme Court in the case of Khenyei vs New India
Assurnace Co. Ltd. & Ors. , reported in 2015 (9) SCC 273 , the
learned Tribunal ought to have directed all the respondents
except the respondent No.2- Insurance Company to satisfy the
award. He further submitted that he has challenged only the
apportionment and not challenged the exoneration of the
Insurance company. He further submitted that respondent No.4-
Insurance Company ought to have satisfied the award and
thereafter it may have been permitted to recover 50% of the
awarded amount from the owner of the truck bearing
registration No.GJ-10-V-5973. Therefore, the operative portion of
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the impugned judgment and award is required to be modified to
the aforesaid extent.
5. Per contra , Mr. Sunil B. Parikh, learned advocate appearing
on behalf of the respondent No.4- Insurance Company
vehemently submitted that the learned Tribunal had attributed
the negligence of the driver of truck bearing registration No.GJ-
10-T-5932 to the extent of 50%. Therefore, the respondent No.4-
Insurance Company of the said truck is liable to satisfy the
impugned judgment and award only to the extent of 50%. He
further submitted that the impugned judgment and award may
be modified to that extent.
6. Having considered the submissions canvassed by the
learned advocates for the parties and having gone through the
record, it is to be noted that the appellants have challenged the
impugned judgment and award on the ground that the learned
Tribunal has exonerated the respondents except respondent
No.1 from satisfying the award.
7. It is not in dispute that at the time of accident, the
deceased was travelling as a gratuitous passenger in a truck
bearing registration No.GJ-10-V-5973. The learned Tribunal
came to the conclusion that the deceased was travelling as a
gratuitous passenger in that truck. While deciding the issue of
negligence, the learned Tribunal has apportioned the negligence
in the ratio of 50:50 between the drivers of both the offending
vehicles. It is not in dispute that two vehicles were involved in
the accident. Therefore, the deceased succumbed to the injuries
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as a result of the composite negligence of the drivers of both the
vehicles. Hence, in the case of composite negligence, the legal
representatives of the deceased can recover the compensation
from any of the tortfeasors. But, at the same time, it is to be
noted that the deceased was travelling as a gratuitous passenger
in a truck bearing registration No.GJ-10-V-5973. Therefore, no
liability can be fastened upon the insurer of the said truck. But
the owner of the truck is equally liable to satisfy the award.
Thus, in the case of Khenyei ( supra ), the Hon’ble Supreme Court
observed, in paragraph 22.1 & 22.2, as under:-
“22.1. In the case of composite negligence, the
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.
22.2. In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis-à-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.”
8. Thus, considering the ratio laid down by the Hon’ble
Supreme Court in the case of Khenyei ( supra ), it would be just
and proper, if at the first instance, the respondent No.4-
Insurance Company is directed to satisfy the impugned
judgment and award and thereafter it may recover 50% of the
awarded amount from the respondent No.1 i.e. the owner of the
truck bearing registration No.GJ-10-V-5973.
9. In view of the above discussion, the captioned appeal
stands allowed partly.
10. Hence, at the first instance, the respondent No.4-
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Insurance Company is directed to satisfy the impugned
judgment and award and thereafter, the respondent No.4 is
permitted to recover 50% of the awarded amount from the owner
of the truck bearing registration No.GJ-10-V-5973 i.e. opponent
No.1/respondent No.1 herein by way of filing an execution
petition before the concerned learned Tribunal.
11. Upon depositing the said amount, the learned Tribunal
shall disburse the amount to the original claimant/s, after
deducting the deficit court fees, if any, and after due verification.
Statutory amount, if any, lying/deposited with the Registry of
this Court, the same be transmitted to the concerned learned
Tribunal forthwith.
12. R & P, if any, be sent back to the concerned learned
Tribunal forthwith.
(MOOL CHAND TYAGI, J)
CDP
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