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Thursday, October 29, 2015

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) 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 tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.” In view of the aforesaid, the amount determined/awarded by the Claims Tribunal was Rs.5,81,000/- along with 6 per cent interest from the date of filing of the petition till the date of realization of the amount is upheld as no appeal for its enhancement was filed before the High Court by the claimants. It would be open to the claimants to recover the entire amount from any of the respondents, that is from owner, driver and insurer of the Maruti car or respondent No.4, driver of the tempo as their liability is joint and several with respect to claimants. It would be open to the respondents to settle their inter se liability as per the aforesaid decision of this Court. Appeal is allowed. No order as to costs.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8879  OF 2015
                   [Arising out of SLP [C] No.24685/2013]


Kamlesh & Ors.                               … Appellants

Vs.

Attar Singh & Ors.                                 … Respondents





                               J U D G M E N T



ARUN MISHRA, J.



1.    Leave granted.

2.    The appeal has been  preferred  by  the  claimants  aggrieved  by  the
dismissal of their claim petition and setting  aside  award  passed  by  the
Motor Accidents Claims Tribunal,  Sonepat  on  5.8.2005  in  Claim  Petition
No.217/2002/2004 by the High Court of Punjab & Haryana  at  Chandigarh  vide
judgment and order dated 4.9.2009 in FAO No.345/2007.

3.    The claimants Kamlesh, widow of deceased Rishi  Parkash,  three  minor
sons and mother of the deceased  filed  a  claim  petition  as  against  the
driver, owner and insurer of Maruti Car No.DL4CC -5172 and driver of  three-
wheeler Tempo No.HRH-3572. The compensation of Rs.12  lakhs  was  prayed  on
account of the death of Rishi Parkash in the accident dated 8.5.2003  caused
due to the collision between Maruti car and tempo. Maruti car was driven  by
Rajinder Singh whereas the tempo  was  driven  by  Attar  Singh,  respondent
No.4. Deceased Rishi Parkash was travelling in  the  tempo  towards  village
Naina Tatarpur. As per the claimant Attar Singh was  driving  the  tempo  on
his right side at a normal speed in due observance  of  the  traffic  rules.
When he reached about 1.5 km. from  Barwashni  towards  Gohana,  Maruti  car
came from the opposite side and struck the tempo inbetween near footstep  as
a result of which Rishi Parkash received injuries and succumbed to  them  on
the way to the hospital. Postmortem was conducted. Respondent No.1  Rajinder
filed an  FIR  No.77  under  section  279-304-A  IPC  against  Attar  Singh.
Deceased was aged 36 years and was working as a Supervisor in  Emkay  &  Co.
He was receiving a salary of Rs.4,500 per month. Maruti  car  was  owned  by
Hukam Chand and insured with Oriental Insurance Co. Ltd.

4.    The owner and driver of the Maruti car  contended  that  the  accident
was the outcome of rash and negligent driving of Attar Singh, driver of  the
tempo.  Police  had  found  on  due  investigation  that  Attar  Singh   was
negligent. Chargesheet was also filed against Attar Singh.  The  insurer  in
its separate written statement also contended that the accident was  due  to
rash and negligent driving of Attar Singh, respondent No.4.

5.    Attar Singh, respondent No.4, in his reply contended that  Police  had
fabricated the case against him in collusion with Rajinder Singh, driver  of
the Maruti car. A criminal complaint  has  been  filed  by  respondent  No.4
against Rajinder Singh, driver of Maruti Car  before  the  Additional  Chief
Judicial Magistrate, Sonepat for rash and negligent driving.

6.    Claims Tribunal came to the  conclusion  that  Ram  Parshad,  Claimant
Witness PW-2 has admitted that after investigation Police  has  found  Attar
Singh to be  negligent  and  he  was  chargesheeted.  Attar  Singh  examined
himself and his statement has not been relied  upon  mainly  on  the  ground
that as he has admitted that  he  was  facing  criminal  trial.  The  Claims
Tribunal found  that  Attar  Singh  driver  of  the  tempo,  was  negligent,
determined the quantum of compensation at  Rs.5,81,000/-  with  interest  at
the rate of 6% per annum from the date of filing application,  liability  to
pay the same has been fastened upon Attar Singh.

7.    Aggrieved thereby Attar Singh preferred appeal before the High  Court.
The High Court on the ground that in the claim petition  the  negligence  of
Attar Singh has not been pleaded and the  claimants  have  relied  upon  the
evidence of Ram Parshad PW2 and Devender PW3 to prove the negligence of  the
driver of the Maruti car; whereas Rajinder driver  of  the  Maruti  car  had
lodged the first information report. As the claimants have not  set  up  the
case of negligence against Attar Singh. As such the High Court  has  allowed
the appeal filed by Attar Singh driver of the tempo and  has  dismissed  the
claim petition. Aggrieved thereby the  appeal  has  been  preferred  by  the
claimants.

8.    We have heard learned counsel  for  the  parties  and  perused,  inter
alia, the evidence on record of Ram  Parshad  PW2  and  Devender  PW.3.  The
method and manner in which the accident has taken place leaves no  room  for
doubt that it was a case of composite negligence  of  drivers  of  both  the
vehicles, that is the driver of Maruti  car  and  driver  of  tempo.  Though
Police has registered a case against driver of the  tempo  Attar  Singh  and
has filed a chargesheet but the  same  cannot  be  said  to  be  conclusive.
Though, Attar Singh has stated that it was in order to oblige the driver  of
the Maruti car, a case was registered against him.  Be that as it  may.   It
appears both the drivers have  tried  to  save  their  liability.   In  such
circumstances,  the  version  of  eye-witnesses,  PW.2  and   PW.3   assumes
significance. The fact remains that car had dashed the tempo on  the  middle
portion near footstep. Thus the method and manner in which the accident  has
taken place leaves no room for doubt that both the drivers  were  negligent.
Man may lie but the circumstances  do  not  is  the  cardinal  principle  of
evaluation of evidence. No effort  has  been  made  by  the  High  Court  to
appreciate the evidence and method and manner  in  which  the  accident  has
taken place.  Both the aforesaid witnesses have stated  Maruti  Car  was  in
excessive speed.  However, it appears driver of tempo also could not  remove
his vehicle from the way  of  Maruti  Car.   Thus,  both  the  drivers  were
clearly negligent.  It appears from the facts and  circumstances  that  both
the drivers were equally responsible for the accident. Thus, it was  a  case
of composite negligence.  Both the drivers were joint ‘tort-feasors’,  thus,
liable to make payment of compensation.

9.    The  law  in  the  case  of  an  accident  arising  out  of  composite
negligence has been considered by  a  3  Judges’  bench  of  this  Court  in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015  SC  2261)  wherein
following propositions have been laid down :

“(i)  In the case of composite negligence,  plaintiff/claimant  is  entitled
to sue both or any one of the joint tort feasors and to recover  the  entire
compensation as liability of joint tort feasors is joint and several.

(ii)  In the case of composite  negligence,  apportionment  of  compensation
between  two  tort  feasors  vis  a  vis  the  plaintiff/claimant   is   not
permissible.  He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been  impleaded  and  evidence
is sufficient, it is open  to  the  court/tribunal  to  determine  inter  se
extent of composite negligence of the  drivers.  However,  determination  of
the extent of negligence between the joint tort  feasors  is  only  for  the
purpose of their inter se liability so that one may  recover  the  sum  from
the other after making whole of payment to  the  plaintiff/claimant  to  the
extent it has satisfied the liability of the other.  In case  both  of  them
have been impleaded and the apportionment/ extent of  their  negligence  has
been determined by the court/tribunal, in main case one  joint  tort  feasor
can recover the amount from the other in the execution proceedings.

(iv)  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  tort  feasors.  In  such  a  case,
impleaded joint tort feasor should be left, in case he so  desires,  to  sue
the other joint tort feasor in independent proceedings after passing of  the
decree or award.”



10.   In view of the aforesaid, the amount determined/awarded by the  Claims
Tribunal was Rs.5,81,000/- along with 6 per cent interest from the  date  of
filing of the petition till the date of realization of the amount is  upheld
as no appeal for its enhancement was filed before  the  High  Court  by  the
claimants. It would be open to the claimants to recover  the  entire  amount
from any of the respondents, that is from owner, driver and insurer  of  the
Maruti car or respondent No.4, driver of the tempo  as  their  liability  is
joint and several with respect  to  claimants.  It  would  be  open  to  the
respondents to  settle  their  inter  se  liability  as  per  the  aforesaid
decision of this Court. Appeal is allowed. No order as to costs.



                                                              ……………………..CJI.
                       (H.L. Dattu)



New Delhi;                              ………………………..J.
October 27, 2015.                                       (Arun Mishra)



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