KAMLESH & ORS.versusATTAR SINGH & ORS.

                       [2015] 12 S.C.R. 1022


A                       KAMLESH & ORS.
                                 V.

                      ATTAR SINGH & ORS.
                  (Civil Appeal No. 8879 of 2015)
B
                       OCTOBER 27, 2015
            [H.L. DATTU, CJI AND ARUN MISHRA, J.]

       Motor Vehicles Act, 1988 - Fatal accident - Death
c occurred on account of collusion between a tempo (on which
  the deceased was travelling) and a car- Claim petition by
  the dependants of deceased against the driver, owner and
  insurer of the car and the driver of the tempo - Tribunal
  awarded compensation of Rs. 5, 81, 0001-, fastening the liability
D to pay the same on the driver of the tempo, attributing him .
  negligence - High Court, in appeal by the driver of tempo,
  set aside the award holding that the claimants had not set up
  case of negligence against him - On appeal, held: Method
  and manner of the accident and version of two witnesses show
E
  that it was a case of composite negligence - Both the drivers
  were joint toit-feasors and thus liable to make payment of
  compensation - Compensation awarded by the Tribunal is
  confirmed - It is open to claimants to recover the entire
F amount from any of the respondents - It is open to the
  respondents to settle their inter se liability or per Khenyei
  case.

        Allowing the appeal, the Court

G        HELD:1. 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. Though Police has registered a case
    against driver of the tempo, but the same cannot be said
H
                               1022
       KAM LESH &ORS. v. ATIAR SINGH & ORS.               1023


to be conclusive. It appears that both the drivers have A
tried to save their liability. In such circumstances, the
version of eye-witnesses, PW.2 and PW.3 assumes
significance. 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 witnesses B
have stated that the car was in excessive speed.
However, it appears that the driver of tempo also could
not remove his vehicle from the way of the car. Thus,
both the drivers were clearly negligent. It was a case of c
composite negligence. Both the drivers were joint 'tort-
feasors', thus, liable to make payment of compensation.
(Para 8) (1026-C-H; 1027-A-B]

     Khenyei v. New India Assurance Co. Ltd. & Ors.
                                                           v·
     AIR 2015 SC 2261: 2015 (5) SCR 158 - relied
     on.

     2. The amount determined/awarded by the Claims
Tr.ibunal i.e. Rs.5,81,000/- along with 6 per cent interest
is upheld as no appeal for its enhancement was filed by E
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 the car or
respondent No.4, driver of the tempo, as their liability is F
joint and several with respect to claimants. It would be
open to the resp•:>ndents to settle their inter se liability
as per khenyei case. [Para 10] (1028-C-D]

                  Case Law Reference
                                                           G
  2015 (5) SCR 158             relied on      Para 9

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
8879 of 2015.
                                                           H
    From the Judgment and Order dated 04.09.2009 of the
1024         SUPREME COURT REPORTS .                [2015] 12 S.C.R.


 A     High Court of Punjab & Haryana at Chandigarh in F.A.O. No.
       345 of2007.

           Daya Krishan Sharma, Adv., fortheAppellatns.

 B          Manish Pratap Singh, (for Dr. NafisA. Siddiqui)., Adv., for
       the! Respondent.

           The Judgment of the Court was delivered by

           ARUN MISHRA, J. 1. Leave granted.
 c
        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
· D 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 RiSht·
     Parkash, three minor sons and mother of the deceased filed a
 E claim petitiOl'I 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
 F 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
 0
     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
 1-1 the way to the hospital. Postmortem was conducted.
     Respondent No.1 Rajinder filed an FIR No.77 under section
        KAMLESH & ORS. v.ATIAR SINGH & ORS.                     1025
                 [ARUN MISHRA, J.]

279-304-A IPC against Attar Singh. Deceased was aged 36 A
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.
                                                                   B
     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 thatAttar Singh was negligent. Chargesheet was
also filed againstAttar Singh. The insurer in its separate written C
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 D
with Rajinder Singh, driver of the Maruti car. A criminal
complaint has been filed by respondent No.4 against Rajinder
SirJgh, driver of Maruti Car before the Additional Chief Judicial
Magistrate, Sonepat for rash and negligent driving.
                                                                  E
     6. Claims Tribunal came to the conclusion that Ram
Parsh<!d, 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 F
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 G
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 negiigence of Attar Singh has not been pleaded H
1026          SUPREME COURT REPORTS                   [2015] 12 S.C.R.


 A     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
 8     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.
 c          8. We have heard learned counsel for the parties and
       pe~rused, inter a/ia, the evidence on record of Ram Parshad
       P\N2 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
 D
       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
 E     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
 F     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
 G     Court to appreciate the evidence and method and manner in
       which the accident has taken place. Both the aforesaid
       witnesses ha11e 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
 H     clearly negligent. It appears from the facts and circumstances
        KAM LESH & ORS. v. ATTAR SINGH & ORS.                       1027
                  [ARUN MISHRA, J.]

that both the drivers were equally responsible for the accident. A
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 B
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 :
                                                                    c
     "(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.                      -
                                                                    D
     (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.
                                                                     E
     (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 F
     purpose of their inter se liability so that one may recover
     the sum from the other after making whole of payment to
     the plajntiff/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 G
     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 H
1028          SUPREME COURT REPORTS                [2015] 12 S.C.R.


 A           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
 B           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
 C date of realization of the amount is upheld as no appeal for its ·
   Emhancement 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
 D
   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.
 E     l<alpana K. Tripathy                              Appeal allowed.