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)
