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Thursday, January 30, 2014

Accident claim - M.V.Act - composite negligence & contributory negligence - Truck and Geep colluded -for passengers - third parties both are jointly and severally liable to pay compensation - Claim petitions by passengers against Zeep but unknown Truck driver and owner not added as parties as they escaped - Tribunal dismissed the claim as it hold Truck was only responsible for accident - High court found both are responsible for accident - apportioned the liability as 60% for Truck and 30% for zeep - Truck hit and run away - Apex court held that since the petitioners are only passengers of zeep , the question of contributory negligence by them does not arise - Since the accident was due to composite negligence Truck and Zeep drivers and owners are jointly and severally liable to pay compensation - Apex court set aside the apportionment of High court and allowed the appeal = PAWAN KUMAR & ANR. ETC. ... APPELLANT (S) VERSUS M/S HARKISHAN DASS ... RESPONDENT (S) MOHAN LAL & ORS. = 2014( January part) judis.nic.in/supreme court/filename=41185

Accident claim - M.V.Act - composite negligence & contributory negligence - Truck and Geep colluded -for passengers - third parties both are jointly and severally liable to pay compensation -  Claim petitions by passengers against Zeep but unknown Truck  driver and owner not added as parties as they escaped - Tribunal dismissed the claim as it hold Truck was only responsible for accident - High court found both are responsible for accident - apportioned the liability as 60% for Truck and 30% for zeep - Truck hit and run away - Apex court held that since the petitioners are only passengers of zeep , the question of contributory negligence by them does not arise - Since the accident was due to composite negligence Truck and Zeep drivers and owners are jointly and severally liable to pay compensation - Apex court set aside the apportionment of High court and allowed the appeal = 

The distinction between the principles of composite  and  contributory
negligence has been dealt with in Winfield & Jolowicz on Tort  (Chapter  21)
(15th Edition, 1998). 
It would  be  appropriate  to  notice  the  following passage from the said work:-

“WHERE two or more people by their independent breaches of duty to the
      plaintiff cause him to suffer distinct injuries, no special rules  are
      required, for each tortfeasor is liable for the damage which he caused
      and only for that damage.  Where, however, two  or  more  breaches  of
      duty by different persons cause  the  plaintiff  to  suffer  a  single
      injury the position is more complicated.  The law in such  a  case  is
      that the plaintiff is entitled to sue all or any of them for the  full
      amount of his loss, and each is  said  to  be  jointly  and  severally
      liable for it.  This means that special rules are  necessary  to  deal
      with the possibilities of successive actions in respect of  that  loss
      and of claims for contribution or indemnity by one tortfeasor  against
      the others.  It is greatly to the plaintiff’s advantage to  show  that
      that he has suffered the same, indivisible harm  at  the  hands  of  a
      number of defendants for he thereby avoids the risk, inherent in cases
      where there are different injuries, of finding that one  defendant  is
      insolvent (or uninsured) and being unable to execute judgment  against
      him.  The same picture is not, of course, so attractive from the point
      of view of the  solvent  defendant,  who  may  end  up  carrying  full
      responsibility for a loss in the causing of which  he  played  only  a
      partial, even secondary role.

      ………………………………………………………………..……………………………………………………………………..

           The question of whether there is one injury can be  a  difficult
      one.  The simplest case is that of two virtually simultaneous acts  of
      negligence, as where  two  drivers  behave  negligently  and  collide,
      injuring a passenger in one of the cars or a pedestrian, but there  is
      no requirement that the acts be simultaneous.   ……………..”
The above principle has been  explained
in T.O. Anthony (supra) followed in   K. Hemlatha & Ors. (supra).   Paras  6
and  7  of  T.O.  Anthony  (supra)  which  are  relevant  may  be  extracted
hereinbelow:
“6. “Composite negligence” refers to the negligence on the  part
           of two or more persons. Where a person is injured as a result of
           negligence on the part of two or more  wrongdoers,  it  is  said
           that  the  person  was  injured  on  account  of  the  composite
           negligence of those wrongdoers. In such a case,  each  wrongdoer
           is jointly and severally liable to the injured  for  payment  of
           the entire damages and the injured  person  has  the  choice  of
           proceeding against all or any of  them.  In  such  a  case,  the
           injured need not establish the extent of responsibility of  each
           wrongdoer separately, nor is  it  necessary  for  the  court  to
           determine the extent of liability of each wrongdoer  separately.
           On the other hand where a person suffers injury, partly  due  to
           the negligence on the part of another  person  or  persons,  and
           partly as a result of his own negligence, then the negligence on
           the part of the injured which contributed  to  the  accident  is
           referred to as his contributory negligence. Where the injured is
           guilty of some negligence, his claim for damages is not defeated
           merely by reason of the negligence on his part but  the  damages
           recoverable by him in respect of the injuries stand  reduced  in
           proportion to his contributory negligence.



           7. Therefore, when two vehicles are involved in an accident, and
           one of the drivers claims compensation  from  the  other  driver
           alleging negligence, and the other driver denies  negligence  or
           claims that the injured claimant himself was negligent, then  it
           becomes necessary to consider whether the injured  claimant  was
           negligent and if so, whether he was solely or partly responsible
           for the accident and the extent of his responsibility, that  is,
           his contributory negligence.  Therefore  where  the  injured  is
           himself partly liable, the principle of  “composite  negligence”
           will not apply nor can there be an automatic inference that  the
           negligence was 50:50 as has  been  assumed  in  this  case.  The
           Tribunal ought to  have  examined  the  extent  of  contributory
           negligence  of  the  appellant  and  thereby  avoided  confusion
           between composite negligence and  contributory  negligence.  The
           High Court has failed to correct the said error.”
In the present case, neither the  driver/owner  nor  the  insurer  has
filed any appeal or cross objection against the findings of the  High  Court
that both the vehicles were responsible for the accident.   In  the  absence
of any challenge to the aforesaid part of the order of the  High  Court,  we
ought to proceed in the matter by accepting the said  finding  of  the  High
Court.  From the discussions that have preceded, it is clear that  the  High
Court was not  correct  in  apportioning  the  liability  for  the  accident
between drivers/owners of the two vehicles.

9.    We, accordingly, hold that the drivers/owners  of  both  the  vehicles
are jointly and severally liable to pay compensation and it is open  to  the
claimants to enforce the award against both or any of them.   The  order  of
the High Court dated 05.07.2006 is modified to the  extent  indicated  above
and the appeal is allowed.

2014( January part) judis.nic.in/supreme court/filename=41185      P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH    

     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL  NO. 5906 OF 2008


PAWAN KUMAR & ANR. ETC.                 ...  APPELLANT (S)

                                   VERSUS

M/S HARKISHAN DASS                      ...  RESPONDENT (S)
MOHAN LAL & ORS.



                               J U D G M E N T

RANJAN GOGOI, J.

1.    The appellants were the claimants in the  proceedings  instituted  for
award of compensation  under  the  Motor  Vehicles  Act,  1988  (hereinafter
referred to as “the Act”).  They are aggrieved by the decision of  the  High
Court of Punjab & Haryana at Chandigarh in F.A.O. Nos. 695, 407 and  408  of
1995 dated 05.07.2006 by which, though  their  claim  for  compensation  has
been upheld, the liability to pay the same has been apportioned between  the
drivers/owners of the two vehicles involved  in  the  motor  accident.   The
appellants contend that as they were third parties to the  claim,  the  High
Court ought to have made the drivers/owners  of  the  vehicles  jointly  and
severally liable to pay compensation in view of their  composite  negligence
instead of  apportioning  their  liability  by  invoking  the  principle  of
contributory negligence.


2.    The brief facts that will be required to be noticed  may  now  be  set
out:

      Deceased Yogesh  (12  years)  and  Parshotam  D.  Gupta   and  injured
Salochna were travelling  in  Jeep  No.PB-03-6848  from  Sirsa,  Haryana  to
Vaishno Devi on 19.06.1993. The jeep which is owned by the  respondent  No.1
and driven by the respondent No.2 met with an accident with a  truck  coming
from the opposite direction as a result of  which  Parshotam  D.  Gupta  and
Yogesh died on the spot whereas Salochna received serious  injuries.  
Claim
petitions were filed by the  parents  of  Yogesh  and  the  legal  heirs  of
deceased Parshotam Dass including Salochna who is  his  wife.   The  injured
Salochna also filed a separate claim petition in  respect  of  the  injuries
sustained by her in the  same  accident.  
As  the  truck  involved  in  the
accident had fled from the spot, the driver/owner and insurer  of  the  said
truck could not be impleaded in any of the  claim  petitions  filed  by  the
claimants.

      The Motor Accident Claims Tribunal (for short “the  Tribunal)  by  its
award dated 07.11.1994 held that the truck alone  was  responsible  for  the
accident and in the absence of the driver/owner or the insurer of  the  said
vehicle,  no  compensation  can  be  awarded  to  any  of   the   claimants.
Aggrieved, the matter was carried in appeal.
The High  Court  by  its  order
dated 05.07.2006 held that both the truck as well as the jeep, in which  the
deceased  and  the  injured  were  travelling,  were  responsible  for   the
accident.   
The  High  Court  further  held  that  the  liability   of   the
driver/owner of the truck should  be  estimated  at  70%  and  that  of  the
driver/owner of the jeep at 30%.
Accordingly, the High Court held  that  in
respect of the death of Yogesh, compensation of Rs.2,00,000/- would  be  the
just and fair compensation payable to the legal  heirs.   
30%  thereof  i.e. Rs.60,000/- was held to be payable by the driver/owner/insurer of the  jeep.
 In respect of deceased Parshotam, the High Court held that  the  amount  of
compensation  payable  would  be  Rs.5,76,000/-  and  accordingly  made  the
respondent Nos.1,  2  and  3  (insurer)  liable  to  pay  30%  of  the  said
compensation  which  comes  to  Rs.1,72,800/-.   
Insofar  as  the   injuries
sustained by Salochna is concerned, the High Court computed  the  amount  of
compensation payable at Rs.2,00,000/- and made the respondent Nos. 1, 2  and
3 liable for compensation to the extent of  30%  of  the  said  amount  i.e.
Rs.60,000/-. 
Aggrieved by the  said  order,  the  appellants/claimants  have
filed the present appeal.

3.    We have heard the learned counsels for the parties.

4.    Learned counsel for the appellants has contended that though the  High
Court has rightly held both the vehicles to be responsible for the  accident
it has committed a glaring error in invoking the principle  of  contributory
negligence in the present case and in  apportioning  the  liability  between
the drivers/owners of the two vehicles.
Relying on  the  decision  of  this
Court in T.O. Anthony Vs. Karvarnan & Ors.[1] which has been followed  in  a
subsequent decision in Andhra Pradesh State  Road  Transport  Corporation  &
Anr. Vs. K. Hemlatha & Ors.[2], learned counsel has urged  that  in  a  case
where the claimant is a third party (other  than  the  driver/owner  of  the
vehicles involved in the accident) the correct principle  for  determination
of the liability is that  of  composite  negligence  which  would  make  the
drivers/owners of the  two  vehicles  jointly  and  severally  liable.   The
principle of contributory  negligence  so  as  to  apportion  the  liability
between  the  drivers/owners  would  be  relevant  only  if  the  claim  for
compensation is by one of the drivers himself or by his legal heirs, as  the
case may be.  It is, therefore, contended that  the  apportionment  made  by
the High Court is against the settled principles of law laid  down  by  this
Court.

5.    Learned counsel appearing for the  respondent  No.1  has  argued  that
even if the view taken by  the  High  Court  that  both  the  vehicles  were
responsible for the accident is to be accepted, the liability of  the  joint
tortfeasors has to be apportioned which has been so done by the High  Court.
It is also submitted that in  the  absence  of  any  specific  material  the
apportionment of compensation, as determined by the High  Court,  ought  not
to be disturbed.

6.    The distinction between the principles of composite  and  contributory
negligence has been dealt with in Winfield & Jolowicz on Tort  (Chapter  21)
(15th Edition, 1998).
It would  be  appropriate  to  notice  the  following
passage from the said work:-

      “WHERE two or more people by their independent breaches of duty to the
      plaintiff cause him to suffer distinct injuries, no special rules  are
      required, for each tortfeasor is liable for the damage which he caused
      and only for that damage.  Where, however, two  or  more  breaches  of
      duty by different persons cause  the  plaintiff  to  suffer  a  single
      injury the position is more complicated.  The law in such  a  case  is
      that the plaintiff is entitled to sue all or any of them for the  full
      amount of his loss, and each is  said  to  be  jointly  and  severally
      liable for it.  This means that special rules are  necessary  to  deal
      with the possibilities of successive actions in respect of  that  loss
      and of claims for contribution or indemnity by one tortfeasor  against
      the others.  It is greatly to the plaintiff’s advantage to  show  that
      that he has suffered the same, indivisible harm  at  the  hands  of  a
      number of defendants for he thereby avoids the risk, inherent in cases
      where there are different injuries, of finding that one  defendant  is
      insolvent (or uninsured) and being unable to execute judgment  against
      him.  The same picture is not, of course, so attractive from the point
      of view of the  solvent  defendant,  who  may  end  up  carrying  full
      responsibility for a loss in the causing of which  he  played  only  a
      partial, even secondary role.

      ………………………………………………………………..……………………………………………………………………..

           The question of whether there is one injury can be  a  difficult
      one.  The simplest case is that of two virtually simultaneous acts  of
      negligence, as where  two  drivers  behave  negligently  and  collide,
      injuring a passenger in one of the cars or a pedestrian, but there  is
      no requirement that the acts be simultaneous.   ……………..”




7.    Where the plaintiff/claimant himself is found to be  a  party  to  the
negligence the question of joint and several liability cannot arise and  the
plaintiff’s  claim  to  the  extent  of  his  own  negligence,  as  may   be
quantified, will have to be severed.  In such a situation the plaintiff  can
only be held entitled to such  part  of  damages/compensation  that  is  not
attributable to his own negligence.  The above principle has been  explained
in T.O. Anthony (supra) followed in   K. Hemlatha & Ors. (supra).   Paras  6
and  7  of  T.O.  Anthony  (supra)  which  are  relevant  may  be  extracted
hereinbelow:

           “6. “Composite negligence” refers to the negligence on the  part
           of two or more persons. Where a person is injured as a result of
           negligence on the part of two or more  wrongdoers,  it  is  said
           that  the  person  was  injured  on  account  of  the  composite
           negligence of those wrongdoers. In such a case,  each  wrongdoer
           is jointly and severally liable to the injured  for  payment  of
           the entire damages and the injured  person  has  the  choice  of
           proceeding against all or any of  them.  In  such  a  case,  the
           injured need not establish the extent of responsibility of  each
           wrongdoer separately, nor is  it  necessary  for  the  court  to
           determine the extent of liability of each wrongdoer  separately.
           On the other hand where a person suffers injury, partly  due  to
           the negligence on the part of another  person  or  persons,  and
           partly as a result of his own negligence, then the negligence on
           the part of the injured which contributed  to  the  accident  is
           referred to as his contributory negligence. Where the injured is
           guilty of some negligence, his claim for damages is not defeated
           merely by reason of the negligence on his part but  the  damages
           recoverable by him in respect of the injuries stand  reduced  in
           proportion to his contributory negligence.



           7. Therefore, when two vehicles are involved in an accident, and
           one of the drivers claims compensation  from  the  other  driver
           alleging negligence, and the other driver denies  negligence  or
           claims that the injured claimant himself was negligent, then  it
           becomes necessary to consider whether the injured  claimant  was
           negligent and if so, whether he was solely or partly responsible
           for the accident and the extent of his responsibility, that  is,
           his contributory negligence.  Therefore  where  the  injured  is
           himself partly liable, the principle of  “composite  negligence”
           will not apply nor can there be an automatic inference that  the
           negligence was 50:50 as has  been  assumed  in  this  case.  The
           Tribunal ought to  have  examined  the  extent  of  contributory
           negligence  of  the  appellant  and  thereby  avoided  confusion
           between composite negligence and  contributory  negligence.  The
           High Court has failed to correct the said error.”



8.    In the present case, neither the  driver/owner  nor  the  insurer  has
filed any appeal or cross objection against the findings of the  High  Court
that both the vehicles were responsible for the accident.   In  the  absence
of any challenge to the aforesaid part of the order of the  High  Court,  we
ought to proceed in the matter by accepting the said  finding  of  the  High
Court.  From the discussions that have preceded, it is clear that  the  High
Court was not  correct  in  apportioning  the  liability  for  the  accident
between drivers/owners of the two vehicles.

9.    We, accordingly, hold that the drivers/owners  of  both  the  vehicles
are jointly and severally liable to pay compensation and it is open  to  the
claimants to enforce the award against both or any of them.   The  order  of
the High Court dated 05.07.2006 is modified to the  extent  indicated  above
and the appeal is allowed.


                                       ...…………………………CJI.
                                        [P. SATHASIVAM]



                                        .........………………………J.
                                        [RANJAN GOGOI]



                                        …...............………………J.
                                        [SHIVA KIRTI SINGH]

NEW DELHI,
JANUARY 29, 2014.
-----------------------
[1]    (2008) 3 SCC 748
[2]    (2008) 6 SCC 767

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