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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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